Recently, we blogged about a California case, Property Reserve, Inc. v. Superior Court, 224 Cal. App. 4th Dept 828 (2014), wherein the California Third District of Appeal ruled that entry statues which allowed discovery , testing, and inspection of property which was being considered in a condemnation proceeding were unconstitutional. The case was also the subject of a recent New York Law Journal article published on June 24, 2014.
New York has very similar pre-condemnation entry authorizations in its Eminent Domain Procedure Law. The column noted that Property Reserve did not provide a bright-line test for ascertaining whether the government can proceed under entry statutes. But it does make clear that pre-condemnation investigation will have significant impact on the property, or the owner’s ability to exclude provides a basis for a challenge.
On July 30, 2014, the Second Department decided Matter of Jacobowitz v. Board of Assessors for Town of Cornwall, 2014 NY Slip Op 05544. The decision was authored by Justice Thomas Dickerson. You may have noticed that very few decisions are actually authored by one judge. in the past week, of the 50 decisions handed down, only one was signed.
We, of course, read all condemnation and tax certiorari decisions, but we pay particular attention to any decision by Justice Dickerson, who, having presided in the Ninth Judicial Department’s Condemnation and Tax Cert. Part, has a special and scholarly interest in the field.
Jacobowitz involved an application by the Town to compel the property owner to grant access to the interior of the home to conduct and interior appraisal inspection. In his 13 page decision, Justice Dickerson noted that the relief requested by the Town implicated the property owner’s privacy rights under the Fourth Amendment.
The Second Department held that:
[F]or the Town respondents to establish their entitlement to conduct an interior inspection of the petitioner’s home for purposes of an appraisal, in the absence of petitioner’s consent, the Town respondents bore the burden of demonstrating that the “particular inspection [was] reasonable — and thus [that there was] probable cause to issue a warrant for that inspection.”
Through this decision, Justice Dickerson and the Second Department protected a property owner’s Fourth Amendment rights against the Town Condemnor’s attempts to inspect the property without their consent. The full text can be read here.