Petition — Terrace West, Inc. v. City of Plattsburgh

Office - Supreme Court, U.S.

82-717 Bre

OCT 19 1982

No. °

DER .. stevas

CLERK

Iy THE

Supreme Court of the United States

October Term, 1982

TERRACE WEST, Ixc.,

Petitioner,

against

THE CITY OF PLATTSBURGH, NEW YORK,

Respondent,

and

THE STATE OF NEW YORK,

Intervenor.

Ow AppeaL From THE AppeLLATe Division, Tamp Depart-

MENT, OF THE SuPpREME Court or THE State or New York

PETITION FOR CERTIORARI

J. Byron O’Conne.i

O’ConneLt & Wore

Attorneys for Petitioner

10 Healey Avenue

Plattsburgh, NY 12901

(518) 561-1440

i.

Question Presented.

Are Articles 2 and 4 of the New York State Eminent Do-

main Procedure Law facially and in fact unconstitutional

in that they permit a taking of private lands without due

process, without allowing the private landowner the right

to an impartial hearing before an impartial arbitrator on

the issue of whether his property need be taken, or, in

other words, does the Due Process Clause apply to prop-

erty owners as well as to felons?

Table of Contents.

Page

eo Bere rT, ST eeeET Tre i

ics ace sdbbaes cates eat l

Grounds for Jurisdiction. ..............eeeee0es 2

Constitutional Provisions and Statutes Involved... . 3

Sy Or GO IIB os6 5 ovo cctcnsccovasensses 12

Reasons for Granting the Writ................... 16

Index to Appendix.

Court of Appeals Order, September 8, 1982....... Al

Appellate Division Order, May 18, 1982.......... A3

Appellate Division Decision, May 11, 1982........ AS

Appellate Division Order, March 30, 1982......... A6

Appellate Division Decision, March 25, 1982...... A8

Order Appealed From, June 5, 1981.............. All

Memorandum Decision and Order, U. S. District

Court for Northern District of New York,

ea ME creck dadist ocekec «svcdescuh Al5

Appellate Division Order, February 25, 1980...... A24

Page

Appellate Division Decision, February 7, 1980... .. A26

Appellate Division Order, January 14, 1980....... A27

Appellate Division Decision, December 20, 1979... A29

Minutes of Public Hearing....................4. A3l

Public Notice of Determination and Findings... . . . A56

Determination and Findings.................... AS58

UD < ving ub dwhdeccehecasedcubecheeds eyes A6l

Minutes of Resolution..............600seeeeees A64

TABLE OF AUTHORITIES.

CASES CITED:

Missouri P.R. Co. v. Mackey, 127 U.S. 205 ....... 16

Re Kimmler, 136 U.S. 436 ..........ccccceeeeues 16

San Diego Gas & Electric Company v. City of San

DO, GIO UE. GRE wciccccscicesccesssces 15

U.S. v. Reynolds, 397 U.S. 14 ..........0..ceeeees 17

CONSTITUTIONAL PROVISIONS AND STATUTES

CITED:

United States Constitution, Fourteenth Amendment 3

New York Eminent Domain Procedure Law:

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Page

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

TERRACE WEST, Inc.,

Petitioner,

against

THE CITY OF PLATTSBURGH, NEW YORK,

Respondent,

and

THE STATE OF NEW YORK,

Intervenor.

ON APPEAL FROM THE APPELLATE DIVISION, THIRD

DEPARTMENT, OF THE SUPREME COURT OF THE

STATE OF NEW YORK.

Petition for Certiorari.

Opinions Below.

Petitioner, Terrace West, Inc., first appealed in this ac-

tion following the publication by the respondent, City of

2

Plattsburgh, of its determination and findings in this mat-

ter, and its resolution deciding that the taking was proper.

The Appellate Division, Third Department’s decision af-

firming the determination is reported at 73 A. D. 2d 763,

423 N. Y. S. 2d 296. The subsequent decision denying peti-

tioner’s motion for re-argument is not reported. The deci-

sion of the Appellate Division affirming the order permit-

ting the respondent City of Plattsburgh to file an acquisi-

tion map is reported at__.. A. D. 2d____, 499 N. Y. S.

2d 343. The decision of the Appellate Division denying

petitioner’s motion for re-argument or, in the alternative,

for leave to appeal to the Court of Appeals is not yet

reported; neither is the decision of the Court of Appeals of

the State of New York denying petitioner leave to appeal

to that Court.

The memorandum-decision and order of the United

States District Court, Northern District of New York,

dismissing plaintiff Terrace West, Inc.’s complaint is not

reported. Copies of all of these are annexed hereto as part

of the Appendix.

Grounds for Jurisdiction.

The decision sought to be reviewed is that of the Ap-

pellate Division, Third Department, dated March 25,

1982. An order was entered thereon on March 30, 1982.

Terrace West, Inc.’s motion to the Appellate Division for

leave to re-argue, or, in the alternative, for leave to appeal

to the Court of Appeals was denied by decision dated May

11, 1982, the order thereon was entered May 18, 1982.

Petitioner’s motion to the Court of Appeals for leave to

appeal to that Court was denied by order dated and

entered September 8, 1982. The jurisdiction of this Court

is pursuant to 28 U. S. C. 1257 (3).

3

Constitutional Provisions and Statutes Involved.

United States Constitution, Fourteenth Amendment, Sec-

tion 1:

Section 1. Citizens of the United States.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny to

any person within its jutisdiction the equal protec-

tion of the laws.

New York Eminent Domain Procedure Law:

§201. Public hearings

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 accessible to the property

owners whose property might be acquired for such

project.

§202. Notice

(A) Where a public hearing is required by this ar-

ticle the condemnor shall give notice to the public

of the purpose, time and location of its hearing set-

ting forth the proposed location of the public proj-

ect 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 pub-

lished in at least five successive issues of an official

daily newspaper if there is one designated in the lo-

cality where the project will be situated and in at

least five successive issues of a daily newspaper of

general circulation in such locality.

(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 news-

paper in at least two successive issues.

(C) Failure to notify a person or persons entitled

to notice under this section shall not be jurisdic-

tional nor construed to affect the validity of any ti-

tle acquired by a condemnor under this law.

§203. Conduct of the public hearing

At the public hearing the condemnor shall

outline the purpose, proposed location or alternate

locations of the public project and any other infor-

mation it considers pertinent, including maps and

property descriptions of the property to be ac-

quired and adjacent parcels. Thereafter, any per-

son in attendance shall be given a reasonable op-

portunity to present an oral or written statement

and to submit other documents concerning the pro-

posed public project. A record of the hearing shall

5

be kept, including written statements submitted.

The condemnor’s copy of such record shall be

available during normal business hours, at its prin-

cipal and district offices to the public for examina-

tion without cost and shall be reproduced upon

written request and payment of the cost thereof.

Further adjourned hearings may be scheduled.

§204. Determination and findings

(A) The condemnor, within ninety days after the

conclusion of the public hearings held pursuant to

this article, shall make its determination and find-

ings concerning the proposed public project and

shall publish a brief synopsis of such determination

and findings in at least two successive issues of an

official newspaper if there is one designated in the

locality where the project will be situated and in at

least two successive issues of a newspaper of

general circulation in such locality. The synopsis

shall include these factors set forth in subdivision

(B) herein, and shall also state that copies of the

determination and findings will be forwarded upon

written request without cost

(B) The condemnor, in its determination and

findings, shall specify, but shall not be limited to

the following:

(1) the public use, benefit or purpose to be served

by the proposed public project;

(2) the approximate location for the proposed

public project and the reasons for the selection of

that location;

6

(3) the general effect of the propos<d project on

the environment and residents of the locality;

(4) such other factors as it considers relevant.

§207. Judicial Review

(A) Any person or persons jointly or severally,

aggrieved by the condemnor’s determination and

findings made pursuant to this article, may seek

judicial review thereof by the appellate division of

the supreme court, in the judicial department em-

bracing the county wherein the proposed facility is

located by the filing of a petition in such court

within thirty days after the condemnor’s comple-

tion of its publication of its determination and fin-

dings pursuant to section two hundred four herein.

Such petition shall be accompanied by proof of ser-

vice 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 deter-

mination and findings. Upon receipt of such peti-

tion 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 improve-

ment is located in more than one judicial depart-

ment such proceeding may be brought in any one,

but only one of such departments and ail such pro-

ceedings with relation to any single public project

shall be consolidated with the first filed.

(B) The jurisdiction of the appellate division of

the supreme court shall be exclusive and its judg-

ment and order shall be final subject to review by

7

the court of appeals in the same manner and form

and with the same effect as provided for appeals in

a special proceeding. All such proceedings shall be

heard and determined by the appellate division of

the supreme court, and by the court of appeals, as

expeditiously as possible and with lawful prefer-

ence over other matters.

(C) The court shall either confirm or reject the

condemnor’s determination and findings. The

scope of review shall be limited to whether:

(1) the proceeding was in conformity — the

federai and state constitutions,

(2) the proposed acquisition is within the con-

demnor’s statutory jurisdiction or authority,

(3) the condemnor’s determination and findings

were made in accordance with procedures set forth

in this article, including, where applicable, a deter-

mination that an acquisition is exempt from com-

pliance with this article, and

(4) a public use will be served by the proposed ac-

quisition.

§402. Filing of acquisition maps; vesting

(B) In all acquisitions under supreme: court

jurisdiction provided in subdivision (B) of section

five hundred one herein, the condemnor, prior to

filing an acquisition map within the time prescribed

by section four hundred one, shall obtain an order

to acquire such property and for permission to file

such map by presentation of a verified petition to

the supreme court in the judicial district where the

real property to be acquired or any part thereof, is

situated, in accordance with the following pro-

cedure:

(1) The condemnor shall cause to be filed in the

office of the clerk of each county where the real

property to be acquired or any part thereof is

situated, a notice of the pendency of such pro-

ceeding. Such notice shall briefly state the object of

the proceeding and shall contain a general descrip-

tion by metes and bounds or by section, block and

lot number of the real property to be acquired

thereby. It shall also state the names of such of the

reputed condemnees of such real property as may

be known to the condemnor, and in case any of the

condemnees are unknown, a statement to that ef-

fect shall be made in such notice.

(2) The condemnor shall, at least twenty days

prior to the return date of the petition, serve by

registered or certified mail return receipt requested,

a notice of the time, place and object of the pro-

ceeding upon the last known owner or owners of

record of the property to be acquired, as the same

appears from the record of the tax assessor of the

district wherein such parcel or parcels are located.

Said notice shall contain a copy of that portion of

the proposed acquisition map affecting the owner’s

property. At least ten but not more than thirty days

before the return date of the application, the con-

demnor shall also cause a copy of a diagram or

9

representation of the acquisition map showing the

perimeters to be acquired and a notice generally

describing the property to be acquired by metes and

bounds or by section, block and lot numbers, to be

advertised by publishing in at least ten successive

issues of an official newspaper if there is one

designated in the locality where the property is

situated, and in at least ten successive issues of a

newspaper of general circulation in such locality. 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 three successive issues. Where the condemnor

has conducted an article two public hearing or

when the condemnor is exempt from compliance

with article two pursuant to section two hundred

six the condemnor may dispense with the require-

ment of publication in ten successive issues of a

newspaper of general circulation. Where prac-

ticable, the condemnor shall cause copies of such

notice in the form of handbills to be posted for the

same period in at least three conspicuous places,

upon or near such real property. The inadvertent

failure to notify any condemnee, whether of record

or not, will not invalidate any proceedings broughi

hereunder or any title acquired by the condemnor

under this law.

(3) The condemnor shall present to the Court a

petition verified by an authorized officer of the

condemnor setting forth:

(a) a statement providing either the compliance

with the requirements of article two of this law, in-

cluding a copy of the condemnor’s determination

10

and findings or a statement providing the basis of

exemption from article two;

(b) a copy of the proposed acquisition map to be

filed and the names and places of residence of the

owners of the property to be acquired;

(c) a description of the real property to be ac-

quired and its location, either by metes and bounds

of each individual parcel, or section, block and lot

number, and by reference to the acquisition map

and notice of pendency attached to the petition;

(d) the public use for which the property is re-

quired;

(e) a request that the court direct entry of an

order authorizing the filing of the acquisition map

in the office of the appropriate county clerk or

register and that upon such filing, title shall vest in

the condemnor;

(f) if a non-governmental condemnor subject to

the jurisdiction, supervision and regulation of the

public service commission or the commissioner of

transportation, it shall include in its petition for ac-

quisition, notice that it shall deposit a bond or

undertaking with the clerk of the court prior to

vesting of title to the real property described in such

petition in an amount to be fixed by the court on

the return date of the petition. The court shall

direct that the bond or undertaking will be applied

in the amount necessary, for any default by the

condemnor in the payment of all or part of the

damages determined in the acquisition proceeding

or the abandonment thereof.

The requirement for a bond or undertaking

under this subdivision, may be waived by stipula-

tion of the parties. If the amount deposited is insuf-

ficient to pay such damages and all costs and ex-

penses awarded to a condemnee, judgment shall be

entered against the condemnor for the deficiency,

to be enforced and collected in the same manner as

a judgment in the supreme court;

(g) if the property is to be used for the construc-

tion of a major utility transmission facility, as

defined in section one hundred twenty of the public

service law, or major steam electric generating

facility as defined in section one hundred forty of

such law with respect to which a certificate of en-

vironmental compatibility and public need has been

issued under such law, a statement that such cer-

tificate relating to such property has been issued

and is in force.

(4) Upon the presentation of the petition and

notice with proof of service thereof, an owner of

the property may appear and interpose a verified

answer, which must contain specific denial of each

material allegation of the petition controverted by

him, or of any knowledge or information thereof,

sufficient to form a belief, or a statement of new

matter constituting a defense to the proceeding.

(5) At the time and place mentioned in such

notice, unless the court shall adjourn the applica-

tion to a subsequent date, and in that event at the

time and place to which the same may be ad-

journed, upon due proof of service of notice and

upon filing of such petition and proof to its

12

satisfaction that the procedural requirements of

this law have been met, the court shall direct the

immediate filing and entry of the order granting the

petition, which order the condemnor shall file and

enter together with the acquisition map, in the of-

fice of the county clerk or register in each county in

which the real property or any part thereof is

situated. Upon the filing of :he order and the ac-

quisition map, the acquisition of the property in

such map shall be complete and title to such prop-

erty shall then be vested in the condemnor.

Statement of the Case.

The respondent City of Plattsburgh, New York, has

taken from the petitioner Terrace West, Inc., a parcel of

land. This taking, done in conformity with the Eminent

Domain Procedure Law of the State of New York, is in

blatant violation of petitioner’s constitutional right to due

process in the taking of life, liberty or property; therefore,

the New York State Eminent Domain Procedure Law is

unconstitutional and must be struck down and the taking

reversed.

The parcel of land at issue here is a strip sixty-six feet

wide, 310 feet long on its southern boundary, 320 feet long

on its northern boundary, owned by petitioner Terrace

West, Inc. At the time the proceedings under the EDPL

began, it was an unpaved, private driveway, adjacent to

petitioner’s apartment complex, Terrace West. The re-

spondent City of Plattsburgh sought to acquire this parcel

to make into a City street. Pursuant to the relevant sec-

tions of the EDPL, §201-203, a public hearing was held in

the Common Council Chambers, City Hall, Plattsburgh,

13

New York, on July 26, 1979, to discuss the proposed tak-

ing, the “Sandra Avenue Improvement Project’’ (the

minutes of that Public hearing are arnexed hereto as

A-31). EDPL §201 requires a public hearing to be con-

ducted by the condemnor prior to acquisition, ‘‘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 en-

vironment and residents of the locality.’’ §202 sets forth

the procedures to be followed in giving notice of the hear-

ing. §203 provides for the conduct of the public hearing,

and requires the condemnor to outline the project, pro-

posed location and other pertinent information.

**Thereafter, any person in attendance shall be given a

reasonable opportunity to present an oral or written state-

ment and to submit other documents concerning the pro-

posed public project.’’ The public hearing was conducted

by the Mayor of the City of Plattsburgh, with the City

Aldermen and concerned citizens present, including the at-

torney for a private developer to whom the acquisition

would be a benefit and who had already offered the City

$5,000 as reimbursement for expenses anticipated in ac-

quiring this property and in extending the existing water

main. Louis E. Wolfe, the President of Terrace West,

Inc., had submitted a statement in opposition to the tak-

ing, which was read into the minutes by the Mayor.

On August 16, 1979, the Condemnor City of Platts-

burgh made its determination pursuant to EDPL §204,

which requires a synopsis as to the public use, benefit or

purpose to be served by the proposed public taking, the

location and reasons for the selection of the location, the

general effect of the proposed project on the environment

and residents of the locality and such other factors as it

considers relevant (A-56). Also on that date, at a regular

meeting of the Common Council of the City of Platts-

burgh, a resolution was adopted which resolved that the

14

respondent ‘‘City of Plattsburgh, in accordance with the

findings of the Common Council does hereby agree to ac-

quire the subject property for the purposes stated, and the

findings of the Common Council are hereby adopted * * *

[and] the Corporation Counsel is hereby authorized and

directed to proceed with the acquisition of the Terrace

West/Sandra Avenue property under the provisions of the

Eminent Domain Procedures Law.’’ The resolution fur-

ther provided for a copy of the resolution to be furnished

the private developer (A-61).

Terrace West, Inc., then made application to the

Supreme Court of the State of New York, Appellate Divi-

sion, Third Department, pursuant to §207 of the EDPL,

for a judgment rejecting and annulling the findings of the

City of Plattsburgh relative to the proposed Sandra

Avenue Improvement Project. The application was re-

turnable before the Appellate Division on October 29,

1979. By decision dated December 20, 1979, the Appellate

Division confirmed the determination and dismissed Ter-

race West’s petition (A-29). Terrace West, Inc., then

moved in the Appellate Division for leave to reargue,

*‘upon the ground that the statute upon which the matter

was originally decided, the New York Eminent Domain

Procedure Law is unconstitutional because it does not pro-

vide for an evidentiary hearing by an impartial tribunal

prior to the taking as to whether or not the taking is a

private taking or public taking, thus violating the due

process clauses of both the New York Constitution and the

United States Constitution * * *’’ By decision dated

February 7, 1980, the Appellate Division denied the mo-

‘tion for re-argument (A-26). Terrace West, Inc., then

began an action in the United States District Court for the

Northern District of New York against the City of Platts-

burgh, pursuant to 42 U. S. C. §1983, seeking a declara-

tion from that Court that Article 2 of the New York State

15

Eminent Domain Procedure Law was unconstitutional,

and requesting an injunction against the City enjoining it

from taking any actions which would further impair its

rights in the private road. That Court held, in a

memorandum-decision and order dated July 18, 1980, that

the challenge to the constitutionality had been raised and

**necessarily decided’’ by the State Courts; that it could

not view the silence of the State Courts on the subject of

the constitutionality as a failure on their part to address

and decide the issue; and that since Terrace West failed to

seek review in the United States Supreme Court, that

Court ‘‘was precluded from deciding the issue anew’’

(A-15). A notice of appeal to the Second Circuit was filed,

but the appeal was not perfected, as Petitioner decided the

action was premature as no taking had yet occurred; this

decision on the part of Petitioner was confirmed by the

Supreme Court’s subsequent decision in San Diego Gas &

Electric Company v. City of San Diego, 450 U.S. 621, 67

L. Ed. 2d 551.

The City of Plattsburgh then moved in the Supreme

Court of the State of New York, County of Clinton, pur-

suant to EDPL §402, for ‘‘permission to file an acquisi-

tion map in the Office of the Clerk of the County of Clin-

ton, and upon granting of said order, for vesting of title of

certain property’’ in the City. §402 (B) provides for the ac-

quisition of the lands and vesting of title. It requires the

condemnor to obtain an order, from the Supreme Court in

the judicial district in which the property is situated, to ac-

quire such property and for permission to file an acquisi-

tion map. §402 (B) (5) provides that, upon due proof of

service of notice and upon the filing of the petition of the

condemnor and ‘‘proof to its satisfaction that the pro-

cedural requirements of this law have been met, the Court

shall direct the immediate filing and entry of the order

granting the petition * * * Upon the filing of the Order and

the acquisition map, the acquisition of the property in

such map shall be complete and title to such property shall

then be vested in the condemnor.”’

16

Over the opposition of Terrace West, Inc., the petition

was granted by order dated June 5, 1981 (A-11). Terrace

West, Inc., appealed this decision to the Appellate Divi-

sion, Third Department, again arguing the unconstitu-

tionality of the Eminent Dotaain Procedure Law, and fur-

ther raising the point that this issue had not properly been

before the Court previously, as no taking had occurred,

citing San Diego Gas & Electric Company v. City of San

Diego, supra. The Appellate D’vision, by Decision dated

March 25, 1982 affirmed the order (A-8), Terrace West,

Inc., then moved in the Appellate Division for leave to re-

argue, or in the alternative, for leave to appeal to the

Court of Appeals. This motion was denied by order dated

and entered May 18, 1982 (A-5). Petitioner then made a

motion in the Court of Appeals for leave to appeal to that

Court. This motion was denied by order dated and entered

September 8, 1982 (A-1).

Reasons for Granting the Writ.

The sections of the Eminent Domain Procedure Law

cited above are in violation of a landowner’s, more

specifically, in this instance, Terrace West, Inc.’s constitu-

tionally guaranteed right to due process in actions involv-

bag a possible deprivation of property, under the Four-

teenth Amendment. Due process, within the meaning of

the Fourteenth Amendment, is secured if laws do not sub-

ject individuals to an arbitrary exercise of the powers of

government. Missouri P. R. Co. v. Mackey (1888), 127 U.

S. 205, 32 L. Ed. 107, 8S. Ct. 1161. The words ‘‘due proc-

ess’’ refer to that law of the land in each state which

derives its authority from inherent and reserved powers of

state, exerted within limits of those fundamental principles

of liberty and justice which lie at the base of all our civil

and political institutions. Re Kimmier (1890), 136 U. S.

436, 34 L. Ed. 519, 10 S. Ct. 930.

17

Terrace West, Inc., was not afforded this basic due

process in the proceedings which took from it a parcel of

land; proceedings strictly in accord with the relevant sec-

tions of the EDPL. As is set forth in the history of the

case, above, the same entity—the Condemnor City of

Plattsburgh—originated the plan to take the Terrace West

driveway; held the public meeting to inform the public and

review the public use to be served by the proposed project,

pursuant to EDPL §201; conducted the public meeting,

pursuant to EDPL §203; and made a determination and

findings as to the proposed project, pursuant to EDPL

§204. Thus, the on!y hearing conducted prior to the taking

was conducted by the legislature which had in fact

authorized the taking and had commenced the proceeding;

there was a merger of the prosecution and the judiciary.

There was no impartial tribunal. Petitioner is not claiming

that it is entitled to a jury trial, it concedes that it has long

been settled that there is no constitutional right to a jury in

Eminent Domain proceedings. U. S. v. Reynolds, 397 U.

S. 14, 25 L. Ed. 2d 12, 90 S. Ct. 803. Petitioner is claiming

that at some point in the proceedings, a determination

must be made by a neutral party, a third party, an impar-

tial party.

Under the relevant provisions of the EDPL, the Court

has two functions. Pursuant to §207, any aggrieved party

can seek judicial review of the condemnor’s findings and

determination in the appropriate Appellate Division.

However, in this review, there is no testimony taken under

oath for the Court to review, no admissible evidence upon

which a decision can be made. The condemnee is not able

to cross-examine witnesses. The Court has only the Con-

demnor’s written transcript of the record of the pro-

ceedings, and its determination and findings, upon which

to decide whether to confirm or reject the condemnor’s

determinaiion and findings. The landowner is not afforded

due process by this provision.

The second occasion upon which the Court becomes in-

volved in these proceedings is, when, pursuant to §402 (b)

of the EDPL, the condemnor petitions the Court for an

order permitting it to file an acquisition map and to ac-

quire the property. As is set forth above, the Court’s only

obligation here is to review the proof of service and deter-

mine if the procedural requirements of the law have been

met. The landowner is not afforded an opportunity to de-

fend on the merits, to argue the alleged necessity for the

taking of the land. The Court acts as aru “> stamp.

The sections of the Eminent Domain Procedure Law

discussed above are facially and in effect unconstitutional.

Terrace West, Inc., was deprived of its right to due process

in the taking from it of its property. The EDPL sections

complained of herein subject individuals to an arbitrary

exercise of the powers of government; the State’s au-

thority is exerted in excess of those fundamental principles

of liberty and justice which lie at the base of all our civil

and political institutions.

Articles 2 and 4 of the New York Eminent Domain Pro-

cedure Law are unconstitutional, they have deprived peti-

tioner Terrace West, Inc., of its property without due

process of law. These articles must be struck down as un-

constitutional, and Terrace West, Inc., granted relief.

Respectfully submitted,

J. BYRON O’CONNELL

O’CONNELL & WOLFE

Attorneys for Petitioner

10 Healey Avenue

Plattsburgh, N. Y. 12901

(518) 561-1440