Opinion
00 Civ. 7481 (HB)
January 17, 2001
OPINION ORDER
Plaintiffs William V. Minnich, William Brody and St. Luke's Pentecostal Church bring this motion by Order to Show Cause alleging that parts of the New York Eminent Domain Proceeding Law ("EDPL") are unconstitutional under the due process clause of the Fourteenth Amendment of the United States Constitution. Plaintiffs seek a preliminary injunction barring the defendants from proceeding in their respective plans to condemn the property and/or to destroy the existing structures on the property until the case can be heard on the merits. For the following reasons, the preliminary injunction is granted in part and denied in part.
I. BACKGROUND
Each plaintiff in this action is at a different stage of the condemnation proceedings and therefore each posits somewhat different legal arguments. Below I briefly outline the facts with respect to each plaintiff.
A. William Minnich
William Minnich owns a woodworking shop in the Bronx. On May 26, 1999, the Empire State Development Corporation ("ESDC"), pursuant to EDPL § 201, published a notice in the New York Daily News, which I presume to be a legally designated newpaper, of a public hearing scheduled for June 23, 1999. The notice of the hearing, in compliance with EDPL § 202, described the proposed development project and the property sought to be condemned but did not state that the public hearing would be followed by a final determination or that owners would have a limited time to appeal that determination.
EDPL § 201 states:
Except as provided herein, prior to acquisition, the condemnor, 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, shall conduct a public hearing in accordance with the provisions of this article at a location reasonably proximate to the property which may be acquired for such project.
EDPL § 202 states:
A) Where a public hearing is required by this article the condemnor shall give notice to the public of the purpose, time and location of its hearing setting forth the proposed location of the public project including any proposed alternate locations, at least ten but no more than thirty days prior to such public hearing by causing such notice to be published in at least five successive issues of an official daily newspaper if there is one designated in the locality where the project will be situated and in at least five successive issues of a daily newspaper of general circulation in such locality. If the official newspaper is one of general circulation in such locality, publication therein as specified shall be deemed sufficient compliance.
(B) In the event that the only newspaper available in such locality is a weekly publication the above described notice shall be published in such newspaper in at least two successive issues.
(C) Inadvertent failure to notify a person or persons entitled to notice under this section shall not be jurisdictional nor construed to affect the validity of any title acquired by a condemnor under this law.
The notice stated:
PLEASE TAKE NOTICE that a public hearing, open to all persons, will be held by the New York State Urban Development Corporation d/b/a/ Empire State Development Corporation ("ESD" or the "Corporation") pursuant to Section 16 of the New York State Urban Development Corporation Act . . . Sections 201-204 of the New York State Eminent Domain Procedure Law ("EDPL") and the State Environmental Quality Review Act . . . in the Auditorium of the East Harlem Multi-Service Center, 4132 East 120th Street (between First Pleasant Avenues), New York, New York from 6:00 p.m. to 8:00 p.m. on Wednesday, June 23, 1999 to consider: (a) the proposed East River Plaza Land Use Improvement Project General Project Plan ("the General Project Plan"); (b) the proposed acquisition by condemnation of certain property in furtherance of the proposed East River Plaza Land Use Improvement Project (the "Project") in the Borough of Manhattan; and (c) the Draft Environmental Impact Statement ("DEIS") for the Project.
The public hearing is for the purpose of: (I) informing the public about the Project; (2) giving all interested persons an opportunity to be heard with respect to consideration by the Corporation of the General Project Plan, pursuant to Section 16 of the Act; (3) reviewing the public use to be served by the Project and impact of the Project on the environment and residents of the locality where the Project will be constructed, pursuant to Article 2 of the EDPL; and (4) offering all interested persons the opportunity to give testimony on the DEIS, pursuant to the applicable environmental laws.
The remainder of the notice described the project and the location, named the proposed property acquisitions, including Minnich's property, described the possible environmental impact of the development, gave information on the availability of the general project plan and the environmental report, and informed the public that comments may be submitted in writting or made at the hearing.
Minnich states that he did not see the notice in the New York Daily News when it was published or receive personal notice of the hearing but that he learned of it by word of mouth in time to attend. The ESDC, however, contends that, although it was not required to do so under the EDPL, it mailed to Minnich's shop a notice of the hearing by first class mail. Minnich attended the hearing where the ESDC, who ran the hearing, allowed him to speak and submit a written statement, pursuant to EDPL § 203. On September 20 and 21, 1999, the ESDC published the determinations and findings, in which it approved the condemnation.
It appears that Minnich's statement consisted of a ten page letter to the ESDC that included detailed questions regarding all aspects of the proposed condemnation. Aff. in Opp. to Motion, Ex.P.
EDPL § 203 provides:
At the public hearing the condemnor shall outline the purpose, proposed location or alternate locations of the public project and any other information it considers pertinent, including maps and property descriptions of the property to be acquired and adjacent parcels. Thereafter, any person in attendance shall be given a reasonable opportunity to present an oral or written statement and to submit other documents concerning the proposed public project. A record of the hearing shall be kept, including written statements submitted. Copies of such record shall be available to the public for examination without cost during normal business hours at the condemnor's principal office and the office of the clerk or register of the county in which the property proposed to be acquired is located. Copies shall be reproduced upon written request and payment of the cost thereof. Further adjourned hearings may be scheduled.
The determination and findings stated:
A public hearing was held on June 23, 1999, in accordance with the provisions of Article 2 of the New York State Eminent Domain Procedure Law ("EDPL") . . . in connection with the proposal of the New York State Urban Development Corporation . . . to acquire by condemnation certain real estate for use in the development of the East River Plaza Land Use Improvement Project (the "Project"). . . At the hearing the public was provided with information concerning the public use, benefits, and purposes to be served by the Project, the Project location and reasons for the selection of that location, and other pertinent facts. . . The hearing provided ample opportunity for the public to comment upon the Project. The record of June 23rd hearing remained open for additional written comments until July 23, 1999. All testimony and comments received, ESDC's General Project Plan and all other relevant documents have been reviewed, made part of the record and afforded full consideration.
Pursuant to EDPL Section 204, and having given due consideration to the complete hearing record, UDC makes the following determination and findings concerning the proposed Project:
1. The Public Use, Benefit and Purpose to be Served by the Project EDPL Section 204(B)(1)
The public use, benefit and purpose of the Project is to eliminate blight and physical decay that prevails in the Project Area, to permit certain unused or underutilized properties to be restored to uses consistent with the community's present needs and beneficial to the residents of the community and to promote retail and commercial shopping opportunities and development in the area.
[The summary included a brief description of the reasons for the selection of the location and the effect on the environment.]
The EDPL's publication of the determination and findings was in compliance with EDPL § 204, which provides "ninety days after the conclusion of the public hearings . . . [for the condemnor to] make its determination and findings concerning the proposed public project" and requires that the agency "publish a brief synopsis of such determination and findings in at least two successive issues of an official newspaper . . ." N.Y. EDPL § 204(A). The ESDC states that it mailed a copy of the determination and findings to Minnich even though it was not required to do so by the EDPL. See Aff. in Opp. to Motion, Ex. K.
Minnich concedes that he received a summary of the determination and findings, however he states that he does not remember who sent it to him.
At no time did the ESDC inform Minnich of his limited right to appeal i.e. within 30 days after its publication of the determination and findings under EDPL § 207. Minnich argues that he did not appeal within this time period because he was not aware of the limitations period. On November 8, 1999, well after the expiration of the 30 day period to appeal, Minnich attempted to challenge the condemnation by initiating an Article 78 proceeding in New York State Supreme Court. That Court transferred the matter to the Appellate Division, which dismissed the claim as time barred.
EDPL § 207(A) limits a property owners right to appeal to 30 days after publication of the determination and findings.
A) Any person or persons jointly or severally, aggrieved by the condemnor's determination and findings made pursuant to section two hundred four of this article, may seek judicial review thereof by the appellate division of the supreme court, in the judicial department embracing the county wherein the proposed facility is located by the filing of a petition in such court within thirty days after the condemnor's completion of its publication of its determination and findings pursuant to section two hundred four herein. Such petition shall be accompanied by proof of service of a demand on the condemnor to file with said court a copy of a written transcript of the record of the proceeding before it, and a copy of its determination and findings. Upon receipt of such petition and demand, the condemnor shall forthwith deliver to the court a copy of the record and a copy of its determination and findings. The proceeding shall be heard on the record without requirement of reproduction. If such proposed public improvement is located in more than one judicial department such proceeding may be brought in any one, but only one of such departments and all such proceedings with relation to any single public project shall be consolidated with that first filed.
B. William Brody
William Brody owns property in Port Chester, New York that is the subject of this action. He purchased the property in 1996 and renovated two small buildings on the property. Currently there are several small businesses renting space in the buildings.
Brody's situation is quite similar to that of Minnich. On May 22, 1999, the Village of Port Chester ("the Village") published notice in the Journal News, which I presume to be a legally designated newspaper, of the potential condemnation of property, which included Brody's property. Unlike the ESDC, the Village does not allege that it personally notified Brody of the hearing. However, Brody learned of the hearing, attended, and spoke. Like ESDC, at no time did the Village tell Brody of the 30 day limitations period to appeal. In fact, Brody points out that a representative of the Village told him at the hearing that a decision on the condemnation of his property was not imminent and that he need not take swift action, presumably inducing him to believe that he need not take immediate action to appeal.
The Notice stated:
The Village of Port Chester Board of Trustees does hereby announce that a series of concurrent public hearings has been scheduled for Monday, June 7, 1999 at 8:00 P.M. at 350 North Main Street, Port Chester, New York. The purpose of the public hearings is to provide the public with an opportunity to comment on the Modified Marina Redevelopment Project as proposed by GS Port Chester LLC. The following public hearings are scheduled to be held concurrently on the following matters:
1. [Amendments to the zoning laws of Port Chester]
2. [Amendments to the urban renewal plans for the project] . . .
4. Proposed land acquisition under Article 2, Section 201 and 203 of the Eminent Domain Procedure Law. Prior to acquisition of property under eminent domain, a public hearing is held to review the public use to be served by the proposed project and the impact on the environment and residents of the locality where such project will be constructed . . .
Said hearing shall be open to the public and any person present shall have the opportunity to be heard on the question of the proposed designation.
The remainder of the Notice described the availability of copies of the development plan and other documents relevant to the plan.
The Village disputes this allegation, contending that the representative made this statement about the timeframe in reference to concerns about the time when the owners would be physically evicted from their property. The transcript, however, indicates that the statement could reasonably be construed either way.
After the June 7 hearing, the Village determined that they had not fully complied with the EDPL regarding notice, and on July 6, 1999 it held a second hearing. The Village published a notice of the second hearing that was substantially similar in content to the notice for the first hearing. Brody states that he did see this notice or learn about the hearing and did not attend.
The Village explains that it published notice of the June 7 hearing for only one day rather than the five successive days required by the EDPL. When the Village discovered the flaw, it scheduled the new public hearing for July 6 and published the public notice in the local paper for the required five day period. Zarin Aff. ¶ 35-37.
The EDPL does not require the attendance of those whose property is subject to eminent domain at the public hearings.
On July 18 and July 19, in compliance with EDPL § 204, the Village published a summary of its determination and findings in the Journal News, stating that it had approved the condemnation of the property. In accordance with EDPL § 207, Brody's right to appeal expired 30 days thereafter. On April 25, 2000, the Village filed a petition to acquire the title to Brody's property pursuant to EDPL § 402. Brody attempted to challenge the petition by filing a verified answer. Initially the Village's petition for the vesting of the property was denied. On November 8, 2000, the New York State Supreme Court, Westchester County, granted the Village's petition. See Watkins Aff., Ex. C. It therefore appears that the path has been cleared for the Village to take title to the property.
The Legal Notice: Determination and Findings stated in pertinent part:
Notice is hereby given pursuant to Article 2 of the Eminent Domain Procedure Law of the State of New York, that the Board of Trustees of the Village of Port Chester (the "Village Board") made a determination and findings following the public hearing held on July 6, 1999, on the public use to be served by the proposed acquisition of certain parcels on and near the waterfront for the Modified Marina Redevelopment Project in the Village of Port Chester. Copies of the determination and findings will be forwarded upon written request without cost. The following is a synopsis of the determination and findings made by the Village Board:
Public Use, Benefit or Purpose: The public use for which the properties are required is in furtherance of the goals and objectives of the Urban Renewal Plans, as the Village is in the process of undertaking programs for the clearance and reconstruction of certain blighted, substandard and unsanitary areas of the Village. The Modified marina Redevelopment Project seeks to enhance public access to the waterfront, protect and encourage water-dependant uses, promote the development of mixed use and retail commercial uses on the waterfront, remediate environmental problems and have a positive impact on the existing and continued development of the Village waterfront and downtown business areas.
EDPL § 402 governs the vesting of the title in the government after a determination and findings has been published. EDPL sets out the time in which the government must move to vest the title subsequent to the determination and findings.
(A) The condemnor may commence proceedings under this article to acquire the property necessary for the proposed public project up to three years after conclusion of the later of:
(1) publication of its determination and findings pursuant to section two hundred four, or
(2) the date of the order or completion of the procedure that constitutes the basis of exemption under section two hundred six, or
(3) entry of the final order or judgment on judicial review pursuant to section two hundred seven of this chapter.
(B) If the condemnor has not commenced the proceedings under this article to acquire the property prior to the expiration of such three year period the project shall be deemed abandoned, and thereafter, before commencing proceedings under this article the condemnor must again comply with the provisions of article two; provided, however, that the preceding shall not operate to bar the acquisition of property for which title cannot be certified by the state attorney general or appropriate legal officer or attorney of the condemnor in acquisition pursuant to subdivision (B) of section five hundred one of this chapter within such three year period. Such property shall be acquired thereafter as soon as practicable.
(C) In the event property is to be acquired for a public project in stages, the condemnor after conducting a required public hearing for the entire project need not conduct additional hearings for subsequent stages, provided that proceedings under this article with respect to the property necessary for the first stage were commenced within such three year period and provided further, that all proceedings under this article with respect to property for the project are commenced within ten years from the dates hereinabove set forth in paragraphs one, two and three of subdivision (A). (D) In the event additional property must be acquired after the three year period, because of field conditions, such acquisition shall be made as soon as practicable.
C. St. Luke's Pentecostal Church
St. Luke's purchased property in the Town of North Hempstead in 1997 in order to establish a site for a church. However, unbeknownst to St. Luke's, the property had been slated for condemnation by the North Hempstead Community Development Agency (NHCDA) in 1994. On June 28, 1994, a public hearing had been held regarding the condemnation, and the NHCDA had issued its determination and findings approving the condemnation of the property. The notice, hearing, and the determination and findings all appear to have conformed with EDPL requirements. Thus, the decision to condemn the property had been made some three years before the plaintiff purchased the property and, of course, the time to appeal was long gone.
It appears to be undisputed that St. Luke's has never used the property as a church but worships in another location pending the planned rehabilitation of the structure.
St. Luke's argues that the NHCDA had a duty to inform and breached that duty. or put another way, NHCDA should have placed a notation on the deed reflecting the condemnation proceeding. St. Luke's further contends that representatives from the church spoke with various representatives of NHCDA while renovations to the property were ongoing and that no one informed St. Luke's that their property was subject to condemnation.
In March, 2000, NHCDA filed a verified petition, a required step under EDPL § 402 before a court can vest the title with the condemnor. St. Luke's filed a verified answer challenging the vesting of the title with the NHCDA, in part because NHCDA had failed to notify it of the pending condemnation. In response, NHCDA argued that the time to answer had expired and the New York State Supreme Court, County of Nassau, agreed. On April 19, 2000, it entered an order vesting title to the property in NHCDA. Therefore, NHCDA is now the lawful owner of the property. NHCDA has stated that the church structure poses a threat to the health, safety and welfare of the community as it is structurally unsound. NHCDA argues that as the owner of the property, it is liable for any injuries that may occur on the property, and it would like to be able to demolish the structure in order to remove the threat.
II. DISCUSSION
A. Standard for a Preliminary Injunction
A party moving for a preliminary injunction must show 1) the threat of irreparable injury and 2) a likelihood of success on the merits. See Carpenter Technology Corp. v. City of Bridgeport, 180 F.3d 93, 97-98 (2d Cir. 1999).
The balance of hardships alternative to a showing of a likelihood of success on the merits is not available here as plaintiffs "seek to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme." Carpenter Tech. Corp., 180 F.3d at 98.
B. Plaintiffs' Claims of Irreparable Injury
It is well established that the threat of a condemnation of real property constitutes irreparable injury as it cannot be compensated for by a monetary award. See Varsames v. Palazzolo, 96 F. Supp.2d 361, 367 (S.D.N.Y. 2000) ("Deprivation of an interest in real property constitutes irreparable harm.") ( citing Carpenter Tech. Corp., 180 F.3d at 97).
1. William Minnich
Defendant ESDC argues that Minnich fails to satisfy this prong of the preliminary injunction test as he has failed to show that the threatened injury is imminent. See Victoria Corp. v. New York Hotel and Motel Trades Council, AFL-CIO, 30 F. Supp.2d 431, 437 (S.D.N.Y. 1998) (the injury threatened must be "neither remote nor speculative, but actual and imminent.") ( citing Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989).
The ESDC argues that the actual taking of Minnich's property does not present an imminent threat of injury despite the fact that it has issued its determination and findings and the time to appeal has passed. The ESDC contends that under the EDPL § 402, the vesting of title with the condemnor is a somewhat protracted process, requiring both 20 days notice of the return date of a petition seeking title, § 402(B)(2), and a wait of at least one week while the matter is assigned to a judge and set down by the court for a hearing. The ESDC points out that a further delay is incurred as, even after the title vests, a condemnor must publish and mail another notice of acquisition to the condemnee. EDPL § 502(B). The ESDC asserts that it has not yet served the plaintiff to start the 30 day clock running, and that it has no intention of doing so in the immediate future. Based on these facts, supported by a reading of the EDPL, there is no threat of imminent harm to Minnich's property. If the ESDC serves Minnich with the imminent condemnation notice, then upon application the Court will have ample opportunity to enjoin the defendant.
2. William Brody
Defendant Village of Port Chester argues that irreparable injury has not been shown because Brody will receive compensation for his property. However, as stated above, it is well established that a loss of real property does establish irreparable harm and that irreparable harm cannot be avoided through a monetary award. Thus, the plaintiff Brody has showed a threat of irreparable harm.
3. St. Luke's
NHCDA contends that several facts unique to the church's case remove the threat of irreparable harm. They include: the church structure is unsafe and poses a danger to the community, the NHCDA currently holds the title to the property, and St. Luke's does not and has never used the property as a church. I find that since, pursuant to the order of the state court, St. Luke's no longer has title to the property at issue the boat has sailed on this claim as any harm has already occurred.
Therefore, Brody has satisfied the imminent irreparable harm requirement. However, both St. Luke's and Minnich have failed to do so.
C. Likelihood of Success on the Merits
Turning to the likelihood of success aspect of the test for a temporary injunction, the defendants raise several arguments. These include standing and abstention. As I have found that Minnich and St. Luke's have failed to make a showing of irreparable harm, I will not consider their respective likelihood of success on the merits. However, some of the analysis below applies equally to their claims.
1. Standing
Although the defendant ESDC was the only one to raise standing as a defense in its brief, it was suggested at oral argument that Brody may not have standing, and so I consider standing with regard to his claims.
Plaintiffs contend that Brody has standing on the following claims:
• Lack of personal notice of public hearing
• Lack of personal notice of determination and findings
• Lack of notice of right to appeal determination and findings, consequences of failure to appeal
• Deprivation of meaningful opportunity to be heard on government's right to take property and public use
• Lack of adversarial hearing on public use
Courts have established a three prong test for determining standing. "At a minimum, Article III [of the United States Constitution] requires the party who invokes the court's authority to show that (1) he personally has suffered some actual or threatened injury as a result of defendants' putatively illegal conduct; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable decision." Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1095 (2d Cir. 1997). Defendants argue that Brody received actual notice of the hearing and cannot show "that [he] personally have suffered some actual or threatened injury as a result of defendant's putatively illegal conduct." Id.
Plaintiffs argue that Brody has standing to challenge the lack of personal notice of the hearing as he did not receive notice of the second, corrective, hearing. They contend that the second hearing was the "crucial" one under the EDPL and that Brody has standing despite the fact that he knew about and attended the first hearing. Plaintiffs also argue that Brody has standing to claim lack of personal notice of the determination and findings. I find that it is likely that Brody will prevail on the standing issue for these two claims.
On the remainder of the claims, including lack of notice of the right to appeal and the consequences of the failure to appeal, the deprivation of a meaningful opportunity to be heard, and a lack of an adversarial hearing on the determination of a public use, I share plaintiffs' view that Brody has standing for each claim.
2. Burford Abstention
Although the ESDC was the only defendant to raise the issue of Burford abstention, the analysis also applies, and indeed at oral argument defendants suggested its applicability, to Brody. Therefore, I will consider it.
The court has discretion to abstain under Burford either: (1) where "there are `difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar'" or (2) "where `the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.'" NOPSI, 491 U.S. at 361 ( citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976). However, the fact that state statutes are challenged does not warrant Burford abstention as "there is . . . no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy." Id. at 363 ( citing Zablocki v. Redhail, 434 U.S. 374 (1978)). Furthermore, "[w]hile Burford is concerned with protecting complex state administrative processes from undue federal interference, it does not require abstention whenever there exists such a process, or even in all cases where there is a `potential for conflict' with state regulatory law or policy." NOPSI, 491 U.S. at 362.
Defendants argue that here abstention is appropriate as federal judicial review has the potential to disrupt New York's coherent policy of eminent domain. Plaintiffs disagree, arguing that there is no available state forum for their claims and that, as their challenge is to only a small part of the EDPL, it will not disturb the state's efforts to implement a coherent policy in its eminent domain laws.
The Second Circuit has set forth the following three prong test to determine whether abstention under Burford is appropriate: "(I) the degree of specificity of the state regulatory scheme; (2) the need to give one or another debatable constructions to a state statute; and (3) whether the subject matter of the litigation is traditionally one of state concern." Hachamovitch v. DeBuono, 159 F.3d 687, 697 (2d Cir. 1998). The first prong cuts in favor of the plaintiffs. While the EDPL is highly specific in that it establishes detailed procedures for a condemnor to exercise its power of eminent domain, it is not unduly complex when compared to other schemes that have warranted abstention. See Zablocki, 434 U.S. at 379 n. 5 ("Unlike Burford . . . this case [involving Wisconsin's statute governing marriage] does not involve complex issues of state law, resolution of which would be disruptive of state efforts to establish coherent policy with respect to a matter of substantial public concern") ( citation omitted); Hachamovitch, 159 F.3d at 697 ("[The first `factor focuses more on the extent to which the federal claim requires the federal court to meddle in a complex state scheme."); Hanlin Group, Inc. v. Power Authority of the State of New York, 703 F. Supp. 305, (S.D.N.Y. 1989) ("Essentially, federal courts will defer due to the existence of a complex subject matter of special state interest, or the possibility of disturbing a detailed regulatory scheme."). Furthermore, the challenged provisions of the EDPL do not require the federal court to make judgments regarding intricate or complex issues of a state regulatory scheme. Rather, the issues are straightforward — the type of notice, the type of hearing and whether there must be a cloud on the title. Although a finding of unconstitutionality would undoubtedly require some re-crafting of the statute, this is not sufficient to warrant abstention. See NOPSI 491 U.S. at 363. The second prong also weighs in favor of the plaintiffs as the interpretation and application of the statute are clear. Finally, although plaintiffs argue otherwise, the eminent domain power is traditionally an area of state concern. However the issues of due process involved here are overriding issues of federal constitutional concern. See Hachamovitch, 159 F.3d at 697 ("[N]umerous cases have indicated that Burford abstention is not required even in cases where the state has a substantial interest if the state's regulations violate the federal constitution."). Thus, despite the state's interest, this factor as well weighs in favor of the plaintiffs. For the above reasons, I decline to abstain under Burford.
3. Constitutionality of the EDPL
Plaintiffs contend that they are likely to succeed on the merits of their claim that the EDPL is unconstitutional, both facially and as applied, under the due process clause. Plaintiffs argue that the EDPL is unconstitutional in the following ways that are at issue at this juncture:
• it does not require personal notice of the public hearing
• it does not require personal notice of the determination and findings or of the property owner's right to appeal
• it does not provide an adversarial hearing at any time during the proceeding
• it does not provide a forum for the property owner to be heard
a. The Eminent Domain Power
A state's eminent domain power to condemn property for the public purpose is indisputable and long established. "The power of eminent domain is an attribute of sovereignty, and inheres in every independent state." State of Georgia v. City of Chattanooga, 264 U.S. 472, 480 (1924). The Supreme Court has long history of considering the scope of the government's power of eminent domain. Many of these decisions have considered the due process rights of property owners with respect to notice, a hearing, and the opportunity to be heard. None, however, conclusively resolve the issue at bar.
In the leading "notice" case, State of Georgia v. City of Chattanooga, 264 U.S. 472 (1924), the Court considered a challenge by the State of Georgia to a condemnation proceeding regarding land it owned in Chattanooga, Tennessee. The City of Chattanooga had determined that a condemnation of the land owned by Georgia was necessary to develop a street in the business center of the city. The city notified Georgia of the taking by publication, and Georgia challenged on due process grounds. Rejecting the plaintiffs challenge, the Court stated:
The lack of opportunity to be heard before the passage of the ordinance opening the street furnishes no ground for complaint. The taking is legislative and not a judicial function, and an opportunity to be heard in advance need not be given. Personal service upon the owner is not essential; publication of notice is sufficient.Id. At 483. Although this statement appears to grant a property owner no right to challenge a taking under eminent domain, the Court continued:
No complaint is made that the laws of Tennessee do not afford the state of Georgia and other owners reasonable notice and opportunity to be heard before the final determination of judicial proceedings, e.g., whether the state has delegated to the city the power to condemn; whether the taking is for a public purpose; and the amount of the compensation.Id. at 483. Therefore, although the Court held that aspects of the taking were purely legislative functions, not entitled judicial intervention, the Court presumed that the city afforded an owner the opportunity for a judicial proceeding regarding the authority of the city to condemn, whether the taking served a public purpose, and the amount of compensation.
The holding that the determination of the public purpose is subject to some level of judicial review is well established by other cases. See Sears v. City of Akron, 246 U.S. 242, 248 (1918); United States v. 21.5 Acres, No. 83 CIV 5047, LEXSEE 1984 U.S. Dist. LEXIS 18604, at *3-*4 (S.D.N.Y. 1984).
In a case decided one year later, the Court further developed this distinction. In North Laramie Land Co. v. Hoffman, 268 U.S. 276 (1925), the plaintiff claimed that the county's decision to construct a road that would run through part of his land was unconstitutional. Specifically, the plaintiff challenged, among other claims, the sufficiency of the notice of the public hearing, the sufficiency of the public hearing itself, and the 30 day period for filing a notice of objection. First, the Court addressed the plaintiffs challenge to the procedure:
[I]t has been uniformly held that statutes providing for taxation or condemnation of land may adopt a procedure, summary in character, and that notice of such proceedings may be indirect, provided only that the period of notice of the initiation of proceedings and the method of giving it are reasonably adapted to the nature of the proceedings and their subject matter and afford to the property owner reasonable opportunity at some stage of the proceedings to protect his property from an arbitrary or unjust appropriation.North Laramie Land Co., 268 U.S. at 283. Once again, the Court approved a summary procedure without much in the way of due process protections but with the caveat that owners must have a "reasonable opportunity" to protect their property. The Court also distinguished between the plaintiffs claims regarding the decision to condemn his property, and the plaintiffs claims regarding his compensation for the taking:
The taking of property provided for by the statute is a taking of land under the direction of public officers for a public use. . . . [T]he necessity and expediency of the taking of property for public use are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment. With respect to the compensation for the taking, however, due process requires that the owner be given opportunity to be heard, upon reasonable notice of the pending proceeding.Id. at 495 (citations omitted). Thus, the Court held that while property owners were entitled to due process protections at the valuation, the Court found no protection for the city's determination of the necessity and expediency" of the taking. The "necessity and expediency" here appears to include the same aspects of a condemnation that the Court in State of Georgia found did not warrant due process protections. The Court in North Laramie did not consider the due process requirements for the determination of a public purpose.
The proposition that the determination of "necessity and expediency is not subject to judicial review is supported by other decisions as well. In Joslin v. City of Providence, 262 U.S. 668 (1923), the plaintiffs sought to enjoin the city from condemning their property. Inter alia, plaintiffs challenged whether the legislature had conferred too broad a power to the local water supply board to determine which lands would be taken. The Court stated that the legislature had not conferred too much power to the board.
[T]he validity of the act is challenged as denying due process of law, on the ground that the question of the necessity for taking the property has not been determined by the Legislature itself, but is relegated to the city to decide ex parte, without appeal or opportunity for hearing and decision by impartial tribunal. That the necessity and expediency of taking property for public use is a legislative and not judicial question is not open to discussion.Id. at 678.
The Court reinforced its view that property owners are entitled to an opportunity for a judicial proceeding on the determination of public purpose in Catlin v. United States, 324 U.S. 229 (1945). In Catlin, the parties disputed the construction of the War Purposes Act, specifically whether it provided an opportunity for the property owner to challenge the taking as "not being for a purpose authorized by the statute under which the main proceeding is brought." The court found that there was such an opportunity stating that,
[t]he alternative construction, that title passes irrevocably, leaving the owner no opportunity to question the taking's validity or one for which the only remedy would be to accept the compensation which would be just if the taking were valid, would raise serious question concerning the statute's validity.See Catlin, 324 U.S. at 241.
More recently, the Supreme Court spelled out the distinction between the determination of a public purpose and that of "necessity and expediency." In Berman v. Parker, 348 U.S. 26 (1954), the Court considered whether Congress, acting in its capacity as legislative body for the District of Columbia, had the power to take property under its eminent domain power and then turn the property over to private enterprise for development. The plaintiff objected to the District's action in part because it would result in the benefit of one private enterprise at the expense of another.
In finding that such action was within the government's discretion, the Court explained that the District's decision to use private enterprise to accomplish the development was merely a means to an end, the "end" being the exercise of eminent domain power, and that the "means" was entirely within the discretion of Congress. Id. at 33 ("But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established."). The Court also explained that the condemnor's exercise of the eminent domain power must be for a public purpose and was subject to judicial review on this determination. However, the Court observed that, "[t]he role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one." Id. at 32.
In Berman the "means" appear to be the "necessity and expediency" discussed in North Laramie and Catlin. "Once the question of the public purpose has been decided, the amount and character of the land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch." Berman, 348 U.S. at 35-36.
This judiciary's limited role of review on this point was re-affirmed by the Court in Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, (1984). There, the plaintiffs challenged the Hawaii Land Reform Act that allowed real property to be taken from lessors and transferred to lessees in order to reduce the concentration of land ownership that was traceable to the early high chiefs of the Hawaiian Islands on the basis that such concentration of ownership did not serve a public purpose. The Court reversed the lower courts decision, holding that Hawaii's condemnation scheme did serve a public purpose even when the title to the condemned property immediately passed to the private individuals. The Court explained the great deference afforded a legislature's determination of a public purpose. "There is, of course a role for courts to play in reviewing a legislature's judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is `an extremely narrow' one." The Court also articulated the lenient standard to be applied in reviewing a legislative determination, "But where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause." Id. at 2229-30.
In another case, Schroeder v. City of New York, 371 U.S. 208 (1962), the Court addressed the issue of "whether the City of New York deprived the appellant of due process by failing to give her adequate notice of [the] condemnation proceedings." Id. at 208. In Schroeder, the city had condemned property pursuant to the New York City Water Supply Act and notice of the condemnation proceeding had been by publication and posting in the area subject to condemnation, but unseen by the plaintiff Further, the notice did not inform property owners of their right to recover damages for the taking or note any time limit for objections. The Act barred any claims for compensation filed more than three years after the condemnation. Plaintiff claimed that without notice of the condemnation, she missed the three year deadline. The plaintiff argued that she should be able to recover damages for the loss to her property as she was not personally served with notice of the condemnation as well as to her right to compensation. The Court agreed. Relying on Mullane, the Court held that "notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in questions." Id. at 282.
The Court did not consider the issue of whether plaintiff was given adequate notice for the city's determination of a public purpose.
Therefore, while the Court has recognized that the legislature's determination of the "necessity and expediency" of a condemnation is not subject to judicial review, due process considerations and the extent thereof in connection with the public purpose aspect are less clear.
b. New York Eminent Domain Case Law
Unlike the Supreme Court, New York courts have explicitly considered whether the due process protections provided by the EDPL are constitutional and have found unequivocally that they are. See Waldo's, Inc. v. Village of Johnson City, 141 A.D.2d 194, 534 N.Y.S.2d 723 (3d Dep't 1988), aff'd, 544 N.Y.S.2d 809 (1989); Davis v. Dormitory Authority of the State of New York, 223 A.D.2d 431, 636 N.Y.S.2d 1007 (1st Dep't 1996). New York courts, in line with the Supreme Court, have held that public purpose determination is a judicial question, see Fifth Avenue Coach Lines v. City of New York, 183 N.E.2d 684, 688 (N.Y. 1963), and similarly New York courts have found that the EDPL requires the condemnor to make a finding that a condemnation will be for a public purpose. "The principal purpose of [the EDPL] is to insure that an agency does not acquire property without having made a reasoned determination that the condemnation will serve a valid public purpose." Fannie Mae Jackson v. New York State Urban Development Corp., 67 N.Y.2d 400, 417-18 (N.Y. 1986).
c. Due Process Requirements in Cases Not Involving Eminent Domain
As the law in eminent domain cases is limited, it is instructive to consider the due process requirements that courts have imposed in analogous situations.
In Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306 (1950), the Court held that notice by publication was insufficient when the defendant had readily available contact information for the persons whose property was at issue. In Mullane, the defendant had petitioned the New York court to settle a trust, which would amount to a final settlement of the rights of all the beneficiaries to the trust. In accord with New York Banking Law, the defendant notified the beneficiaries by publication only, despite the fact that the defendant knew the addresses of some of the beneficiaries. In now familiar language, the Court held:
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all of the circumstances, to appraise interested parties of the pendency of the action and afford them an opportunity to present their objections.Id. at 314.
Courts have relied on Mullane in determining when notice is sufficient. See Bender v. City of Rochester, 588 F. Supp. 1405, 1408 (W.D.N.Y. 1984) (mailing notice of foreclosure to last known address, which was also the address of the foreclosed property, satisfied Mullane).
Over fifteen years after Mullane, the Court in Mathews v. Eldridge, 424 U.S. 319 (1976) provided further guidance on procedural due process rights. In Mathews, the plaintiff claimed that the government's termination of his social security disability benefits was unconstitutional as he was not given an opportunity for an evidentiary hearing prior to the termination. The Court held that the fact that the plaintiff was provided a hearing after the termination of his benefits was sufficient, despite the fact that there may be a substantial delay between the termination and the hearing. Distinguishing its prior decisions regarding due process requirements, the Court stated that, "[t]hese decisions underscore the truism that due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Due process is flexible and calls for such procedural protections as the particular situation demands." See Mathews, 424 U.S. at 334. The Court then laid the factors to be considered in determining the "specific dictates" of due process:
The Court distinguished Goldberg v. Kelly in which the court held that AFDC recipients entitled to adversarial hearing before termination of their AFDC benefits See Goldberg v. Kelly, 397 U.S. 254, 269 (1970). In Goldberg the Court applied a test similar to the Mathews test that balanced the interest of the plaintiff with that of the government. "The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be "condemned to suffer grievous loss, and depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication." Id. at 262.
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.Id. at 335. Applying the test, the Court found that although the plaintiffs interest was significant, it was not overwhelming. As to the second prong, the Court found that the determination of whether a person was entitled to disability benefits was "more sharply focused and easily documented than the typical determination of welfare entitlement." Thus, the Court concluded that, as a general rule, the SSA could make accurate determinations based on the medical reports of the claimants. The Court also found that a recipient's right to full access to all the information relied upon by the state was an additional safeguard against error. Finally, considering the third prong, the Court found that the requirement of a hearing prior to the termination of benefits would pose potentially significant financial and administrative burdens on the government, which would jeopardize the benefits of other disabled persons and would be contrary to the public interest of"conserving scarce fiscal and administrative resources." Id. at 348.
Courts have relied on the Mathews test to determine the due process requirements in the context of civil forfeiture statutes where the government takes property believed to have been involved in illegal activity without notice and prior to a hearing. See, e.g., United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) (holding that due process required the government to afford notice and the meaningful opportunity to be heard before seizing real property subject to civil forfeiture); United States v. All Assets of Statewide Auto Parts, 971 F.2d 896 (2d Cir. 1992) (holding that the district court's approval of ex parte prenotice seizure that shut down the operation of the petitioner's business was improper under the due process clause); United States v. Livonia, 889 F.2d 1258 (2d Cir. 1989) (holding that the ex parte seizure of land pursuant to a drug-related forfeiture statute without notice to the homeowner and an opportunity for an adversarial hearing violated due process).
In James Daniel, the government obtained a warrant and seized the petitioner's home. See 510 U.S. 43. Applying the Mathews test, the Court found that the first factor, the homeowner's private interest in his home, weighed heavily in favor of the owner. The second prong also weighed heavily in his favor, and the Court found that the "practice of ex parte seizure . . . creates an unacceptable risk of error." Id. at 55. The Court went on to find that the government's interest in a speedy seizure was minimal, the real property wasn't going anywhere. Id. at 56-57. Therefore, the Court found that due process required an adversarial hearing prior to the seizure of real property pursuant to the civil forfeiture statute.
Courts have also applied the Mathews test in other contexts. See, e.g., Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1 (1978) (holding that due process required a municipal utility to provide customers with an administrative hearing prior to the termination of services); Deary v. Guardian Loan, Co., 534 F. Supp. 1178 (S.D.N.Y. 1982) (holding that a New York law authorizing judgment creditors to freeze the assets of debtors violated due process because it failed to require creditors to inform debtors of their right to potentially claim certain exemptions).
In Luedeke v. Village of New Paltz, 63 F. Supp.2d 215 (N.D.N.Y. 1999), the court applied the Mathews test to the plaintiffs § 1983 action in which he claimed that he was deprived of due process when the defendant placed a lien on his home for fines he incurred pursuant to a snow removal ordinance without granting him a prior hearing. The court, applying the Mathews test, found that due process required a hearing prior to the imposition of the lien. Applying the first prong, the private interest involved, the court recognized the substantial interest in owning property free of encumbrances. Considering the second prong of the test, the court found that there was a substantial risk of governmental error in light of the ambiguity of the meaning of the word "abut' in the Village ordinance, the apparent fact that the Village does not review the deeds and property lines prior to fining residents for noncompliance, and the fact that the determination to impose the lien was based upon a one-sided view of the facts and law." Id. at 221. Applying the third prong, the defendant's interest, the court found that it was relatively insignificant as the Village could remove any dangers posed by the snow by removing the snow itself and fining the responsible party later. Id. The court also expressed concern that the Village provided the plaintiff with no forum in which to voice his objections to the lien. Id. at 222.
In Ellender v. Schweiker, 575 F. Supp. 590 (S.D.N.Y. 1983), the court again applied the Mathews test to determine procedural due process rights. In Ellender, the Social Security Administration inadvertently overpaid recipients of social security benefits and then sent the overpaid recipients notices that included a brief statements of the amount owed but did not explain the recipient's right to appeal or the risk that a response to the letter could reactivate an expired statute of limitations. The recipients brought suit, claiming that the notices violated due process as they offered insufficient explanation of their rights. Applying the Mathews test, the court held that the SSA was required to provide notice of the right to appeal and detailed information as to the time and amount of overpayment.
First, the court found that the plaintiffs interest in their social security benefits was substantial, satisfying the first prong of the test. As for the second prong, the court found that the risk of error by the SSA was great as the notices were so vague that the recipients had no information on which to base a challenge. Finally, the court found the third prong to be in the plaintiffs favor as the government's interest was minimal as it would not "be forced to incur large expenses by merely increasing the amount of information contained in notices to the . . . beneficiaries." Id. at 602. The court also observed that the recipients were for the most part elderly people with infirmities and thus perhaps even more deserving of a clear explanation of their rights. The SSA was ordered to provide a notice of the right to appeal and other detailed information.
In Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970), another procedural due process challenge, the Second Circuit did not apply the Mathews test, but applied a similar balancing test stating that "[t]he minimum procedural safeguards required by due process in each situation, depend on the nature of the governmental function involved and the substance of the private interest which is affected by the government action." Id. at 861. The issue was whether notices from the Housing Authority ("HA") to tenants of public housing were sufficient under the Due Process Clause. Specifically, the tenants challenged the notices issued in three situations: an increase in rent; a termination of tenancy due to undesirability, and termination of tenancy for violation of the rules. The court found the conclusory notices to be insufficient given the significant interest of the tenants in maintaining their place to live and their current rent. The court held that the tenants deserved an opportunity to intelligently defend themselves against the HA's action.
4. Does the Case Law Support Plaintiffs' Claims a. EDPL § 202 — Notice of the Public Hearing
First, plaintiffs argue that notice by publication of the public hearing required by EDPL § 202 does not satisfy the standard for personal notice in Mullane. In support of this claim, plaintiffs has provided only cases where the Supreme Court held that personal notice was required for a determination of the value of the property. See Schroeder, 371 U.S. at 212-213, Walker v. City of Hutchinson, 352 U.S. 112 (1956).
The only indication that the Supreme Court intended similar notice for a hearing and on the determination of public purpose is where the Court by implication suggested that both required a "reasonable notice and opportunity to be heard." See State of Georgia, 264 U.S. at 483. However, in more recent cases, the Court has clearly held that a determination of a public purpose is subject to extremely narrow judicial review. See Berman, 348 U.S. at 32.
Looking at Mathews, I find that the likelihood of success tips in favor of the plaintiffs. The plaintiffs prevail under the first prong of the test as the interest of the property owners in preserving their property is significant. While the deprivation is mitigated by the fact that the property owners will be paid the fair value of their property, it remains a devastating loss. The second Mathews factor, "the risk of error in the procedure and any probable value of different procedural safeguards" cuts in favor of the government. Given the extremely narrow scope of judicial review, it is unlikely that personal notice of the public hearing, which may lead to the owner's participation in the hearing and objections to the condemnation, would result in a court's finding that the legislature's determination of a public purpose was unwarranted. Furthermore, it is likely that the property owner will be apprised of the condemnation even without public notice. Finally, the third factor, the governmental interest, cuts in favor of the plaintiffs. 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. At this stage of the litigation no evidence has been presented to even suggest a significant burden on the condemnors. Further, it appears that the respective government entities knew who was subject to the condemnation proceedings and, in the case of Minnich, the ESDC already took the step of personal service. However, more evidence is needed on this point.
b. The Lack of Personal Notice of the Determination and Findings
Plaintiffs argue that the lack of personal notice of the determination and findings coupled with the 30 day statute of limitations on the right to appeal violates due process protections, Plaintiff relies on cases outside the eminent domain context to support this proposition, e.g. Ellender, 575 F. Supp. 590 (S.D.N.Y. 1983); Deary, 534 F. Supp. 1178.
Applying the Mathews factors, I find, similar to the analysis for the notice of the public hearing, that it is likely that the plaintiffs will prevail. The first factor is the same and cuts in favor of the plaintiffs. The second factor cuts in favor of the government. A property owner's knowledge of his or her right to appeal and the statute of limitations may result in an increase in timely appeals from a condemnor's determination and findings. However, the courts' considerable deference to the legislative determination makes a reversal of the condemnor's determination unlikely, so this factor favors the government. Although, again, I have neither seen or heard any evidence of this issue. Finally, considering the third prong, 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. It is possible that a significant numbers of appeals will slow down the development projects or place an unduly strain on judicial resources, however that is an issue to be explored more fully at the hearing on the permanent injunction.
c. The Lack of Opportunity to Engage in an Adversarial Hearing
Plaintiffs contend that the EDPL's failure to provide property owners with an adversarial proceeding in which the owners could cross-examine witnesses is a violation of due process. Once again, plaintiffs rely on cases outside the eminent domain context as plaintiff can cite, and I can find, no eminent domain cases that address this issue.
Plaintiffs rely on numerous cases to support this claim, most of which apply the Mathews test. See Wolff v. McDonnell, 418 U.S. 539, 558 (1974); Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (pre- Mathews); United States v. James Daniel Good Real Property, 510 U.S. 43, 58 (1993); Escalera v. New York City Housing Authority, 425 F.2d 853, 862 (2d Cir. 1970).
Applying the Mathews test, I find that the first two factors are the same as in the above analysis. The property owner has a significant interest but granting an opportunity to engage in an adversarial hearing under the constraints of an eminent domain proceeding is unlikely to alter a reviewing court's determination. The third factor, however, appears considerably different. To require the government to provide an adversarial hearing may result in substantial additional expense, an administrative burden, and considerable delay. The power of eminent domain is exercised to serve the public interest, and if lengthy hearings in the already overburdened state courts were held for every person subject to condemnation, there would be a risk that the exercise of the power would be thwarted along with useful public projects. At this stage and again without any evidence to the contrary, that plaintiffs have not demonstrated a likelihood of success on this claim.
d. The Failure to Provide the Property Owner with a Forum to Assert Defenses to a Condemnation Proceeding
Finally, plaintiffs argue that "it is constitutionally insufficient for the government to simply permit a party to bring his own legal action challenging the deprivation and to strip the aggrieved party of his property if he fails to do so." Pl. Mem. at 22.
Applying the Mathews test, the first prong is, once again, in favor of the property owners as they have a substantial interest in retaining their property. The second prong cuts in favor of the government, as any additional forum would be unlikely to alter the legislature's determination of a public purpose, given the substantial judicial deference that must be paid to the legislature. Finally, the third Mathews factor weighs in favor of the government. Like the plaintiffs challenge for the lack of an adversarial proceeding, the requirement that the government provide an additional forum for the property owner's to express their views would likely result in increased administrative burdens, a burden on the state courts, additional expense, and delay.
CONCLUSION
For the above reasons, Brody is entitled to a preliminary injunction barring the Village of Port Chester from taking further steps to acquire title to his property pending a hearing on the permanent injunction. Plaintiffs motion with respect to Minnich and St. Luke's is denied. At the hearing on the permanent injunction, the parties should include evidence of any impact of a grant or denial of a permanent injunction in light of the Mathews factors.
A hearing on permanent relief centering on the issues raised in this opinion, among others, will be scheduled within sixty to ninety days from the date hereof. Precisely when depends on the convenience of the parties, and they should communicate no later than January 22, 2001 as to when they might be available.
SO ORDERED
DETERMINATION
Based on due consideration of the foregoing, it is determined that ESDC should acquire the Subject Properties by exercise [of] its power of condemnation in order to implement the Project.