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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.

Michael M. Berger

Senior Counsel, Manatt, Phelps & Phillips LLP

2049 Century Park East
Los Angeles , CA 90067

Phone: (310) 312-4185

Fax: (310) 996-6968


USC Law School

Michael M. Berger is senior counsel at Manatt, Phelps & Phillips LLP, where he is co-chair of the Appellate Practice Group. He has argued four takings cases in the U.S. Supreme Court.


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 — that is, the claim was that homes were being taken in the name of “public” use but the intended use was actually private. But there is no reason to restrict the Supreme Court’s careful use of the concept of “pretext” to that specific pretext just because it was the only pretext relied on in that case. The rule, one would think, is and should be broader.

Or is it?

Brinkmann v. Town of Southold, 2024 WL 1080032 (2d Cir. 2024) could provide the Supreme Court with the opportunity to answer that question. The Second Circuit opinions in the 2-to-1 Brinkmann decision provide more than enough fodder to get the issue there. Indeed, the majority and dissenting opinions are about the same length, leading one to surmise that the case might initially have been assigned to the dissenting judge, who wrote a lengthy analysis but was not able to line up a second vote. Hence, two long competing opinions.

But that gets ahead of the story. The facts are pretty straightforward. The Brinkmanns owned a 1.7-acre parcel of vacant land on which they wanted to build a big box store, to add to a chain of hardware stores they own on Long Island. The Town and neighboring property owners objected. They didn’t want a big box there. It was the wrong thing. It would generate too much traffic. More study needed to be done. When the Town imposed new fees for such studies, the Brinkmanns complied. Eventually, the Town denied permits for the proposed use. The Town itself had tried to buy the property before the Brinkmanns succeeded in their acquisition. Worse than that, the Town attempted to pressure the bank that owned the property to renege on its pending contract of sale with the Brinkmanns. When all else failed, the Town began eminent domain proceedings. The claim was that the taking was for a public park.

Not so fast. The Brinkmanns filed suit under 42 U.S.C. § 1983, claiming a 14th Amendment violation, i.e., that the taking was not for a real public use because the Town didn’t really want the property for a park. It simply wanted to prevent the planned private use. The two opinions agree on the underlying facts and the complaint’s allegations. The dissent summarized it thus, quoting from the majority, noting that the complaint ““alleges facts sufficient to support a finding that the decision to create the park was a pretext for defeating the Brinkmanns’ commercial use” of their own property and that the Town decided to seize the Brinkmanns’ property for a park only ‘after varied objections and regulatory hurdles that the Town interposed and that the Brinkmanns did or could surmount.’ …. In other words, the Town did not like what the owners were doing with their property, but the Town was unable to muster the political support to pass a zoning law or to deny a permit. So the Town of Southold grabbed the land for itself.” Intriguingly, the Town showed no interest in acquiring the vacant parcel during the five years it had been on the market.

The majority had no problem with the Town’s high-handed action in using the power of eminent domain (once described by the Pennsylvania Supreme Court as “the most awesome grant of power to the government,” Winger v. Aires, 89 A.2d 521, 522 (Pa. 1952)) simply because it didn’t like the proposed use and couldn’t come up with a legal basis to prevent it. Hence, condemnation for a “park.” But not just any park. This would be a “passive use” park, i.e., a vacant lot on which the Town would do nothing. The dissent called it a “fake park,” because it contained nothing that one would ordinarily expect to find in a park. No trails. No restrooms. No drinking fountains. Nothing. Passive use, indeed.

According to the majority, the use claimed by the Town was a classic “public” use, i.e., a park. The passivity of its use was not relevant. Once the taking was for a recognized public use, the majority was satisfied and would allow the inquiry to go no further.

The dissent was not convinced. All three judges agreed that the complaint adequately alleged that the stated public use was a fraud and that the real reason for the condemnation was that the Town did not like the proposed private development and wanted to stop it. Having failed in its efforts to prevent private development (including the attempt to prevent the sale to the Brinkmanns), the Town sought to compel the sale to itself.

As the dissent pointed out, there were numerous reasons — backed by courts around the country — for peeking behind the Town’s assertion of its desire for a passive park. Everyone agreed that this was pretext; the majority was simply not concerned about it. In its view, the Constitution has a “public use” restriction, not a “good intentions” restriction. As long as the former has been met (either as an actual “public use” or, as expanded in Kelo, a “public purpose”), the case is closed.

But what about those other courts? Before noting some interesting state court cases, it is worth mentioning the series of U.S. Supreme Court decisions examining the purpose of government actions subject to constitutional challenge. E.g., Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265 (1977) (racially discriminatory intent); Masterpiece Cakeshop, Ltd. v. Colorado Civ. Rts. Comm’n, 584 U.S. 617, 638 (2018) (religious discriminatory intent).

We do not have the space for a full discussion (although I recommend reading the dissent in full for those who are interested), but here is a sampling of that discussion. It includes a Georgia case holding it improper to rely on “a mere subterfuge utilized in order to veil the real purpose” of preventing the owner’s lawful use of the property. Earth Mgmt., Inc. v. Heard Cnty., 283 S.E.2d 455 (1981). It quoted a Pennsylvania case holding that the avowed public purpose “must be the true purpose behind the taking,” Middletown Township, 939 A.2d 331. Then there was the New Jersey case holding that “where a condemnation is commenced for an apparently valid, stated purpose but the real purpose is to prevent a proposed development which is considered undesirable, the condemnation may be set aside,” Essex Fells v. Kessler Inst. for Rehab., 673 A.2d 856, 860-61 (N.J. Super. 1995). Not to mention the New York case holding that when “the real purpose of [a] condemnation proceeding” is “to prevent [the property’s] use for something else which the village authorities regard as undesirable,” it “is a perversion of the condemnation process.” In re Hewlett Bay Park, 265 N.Y.S.2d 1006, 1010 (N.Y. 1966).

There is more, but the majority simply brushed these cases aside as being from other jurisdictions and their holdings are inapposite. Given the stark positions taken by the two opinions, and the property owners’ apparent desire to pursue their interests here, a petition for certiorari certainly seems in the offing. Stay tuned.


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