Constitutional Law
Mar. 29, 2024
Is a taking based on pretext constitutional?
In Brinkmann v. Town of Southold, the Second Circuit ruled that the taking of private property for a passive park was a pretext for preventing private development. The dissent called it a "fake park," because it contained nothing that one would ordinarily expect to find in a park.
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When the United States Supreme Court decided its landmark case of Kelo v. City of New London, 545 U.S. 465 (2005), granting broad leeway to government agencies seeking to condemn private property, it provided one significant caveat: “[n]or would the City be allowed to take property under [a] mere pretext ….” Id. at 478. The pretext at issue in Kelo was public use versus private use — t...