Opening a new business in a small town often comes with lots of hurdles, but a town on Long Island has come up with a new way to keep entrepreneurs out: eminent domain. The family owners of Brinkmann’s Hardware thought they had found the perfect location for a new store. But even though they followed all the rules, the town of Southold is trying to take their property for a park—not because the town wants a park, but because that is the only way to stop the Brinkmanns. It’s an extreme tactic to prevent an entirely legal business from serving the community, and it’s unconstitutional.
Brinkmann’s Hardware is a second-generation family business. Opened in 1976, the business is today owned and operated by the founders’ children—Mary, Ben, and Hank Brinkmann. The Brinkmanns are salt-of-the-earth people; they can regularly be seen stocking shelves, walking the aisles and offering friendly advice to customers. They care deeply about their business and are dedicated to its continued growth. This family-owned business even successfully competes with big-box home improvement centers.
For years, the family has wanted to open a new location on the North Fork of Long Island. But the town of Southold, where they purchased a commercial-zoned lot, has done everything possible to stop the Brinkmanns: it slow-played the permitting process, imposed exorbitant fees, and then enacted a targeted moratorium on building permits along a one mile stretch of road with the Brinkmanns’ property in the center.
Once it became evident that the Brinkmanns wouldn’t surrender and that there was no valid reason under the law to deny their right to build on their land, the town resorted to the extreme tactic of suddenly declaring that it needed a park on that precise spot and authorized eminent domain for that purpose. Yet, if all the town needed was a park in that location, it could purchase the lot that is literally next door and for sale. The fact that the town has not even considered this alternative for the park proves that eminent domain isn’t being used for a park; it’s being used to drive the Brinkmanns out of Southold. That is unconstitutional.
Now, the Brinkmanns have teamed up with the Institute for Justice in federal court to end the town’s attempts to thwart their business. While government can generally use eminent domain to build parks, it is unconstitutional if the park is simply a ruse for stopping the otherwise completely legal use of property to build and operate a needed business that will employ and serve the local community.
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Brinkmann’s Hardware, A Mom-and-Pop Success Story
Tony and Pat Brinkmann opened their first hardware store in Sayville, New York, in 1976. Four decades later, Brinkmann’s Hardware has four Long Island locations. In a world of big-box hardware stores, Brinkmann’s offers customers an alternative: a local D.I.Y. center with competitive prices, top brands, convenient locations and helpful customer support.
Brinkmann’s Hardware is still a family business, now led by Pat and Tony’s children—Mary, Ben, and Hank. They are hands-on owners who take pride in their work. They can regularly be seen stocking shelves to make sure their customers have everything they need. They walk the aisles daily, talking with customers. They believe in their business and work hard to ensure it maintains the sense of family that it had when their parents founded the first Brinkmann’s Hardware.
Brinkmann’s Hardware Buys Property in Southold
The Brinkmanns have been looking to expand their business into the town of Southold for a decade. In 2011, Hank spotted a “for sale” sign on a plot of undeveloped land. He knew immediately it was the perfect spot for a new Brinkmann’s Hardware. But at the time the business wasn’t in a financial position to make that dream a reality, and Bridgehampton National Bank purchased the land instead. The bank never built on the land though, choosing to open a new branch in a different part of town.
In 2016, the Brinkmanns were ready to expand. They bought the still undeveloped property from the bank. Rather than close right away, the contract began a due-diligence period to ensure that the Brinkmanns would be able to build their new store.
Relentless Opposition from Southold
The Brinkmanns spent much of 2017 designing the new store and pulling together permit applications. They also tried to integrate into Southold smoothly by working out a deal with the owner of the only hardware store in town. They agreed to buy his store, close it and hire him to manage their new location.
But the Brinkmanns quickly realized that Southold was not happy about the possibility of a new hardware store. This began when town officials and local civic groups stated their opposition at a public meeting. It became apparent to the Brinkmanns that the town simply didn’t want outsiders building a business like a hardware store along the main thoroughfare. For instance, town officials expressed concern over the traffic impact of the store. The Brinkmanns assured the town that they would pay for any intersection improvements that might be needed to address traffic problems.
The town had a serious problem. There was no legitimate basis for denying the Brinkmanns the right to build. And the town couldn’t admit that it wanted to keep the Brinkmanns’ business out of town. So, the town embarked on a series of regulatory delays and demands, hoping the Brinkmanns would just give up and go away.
The Brinkmanns persevered. When they filed their permit application in January 2018, the town would not grant it, leading to six months of difficult negotiations. The town also demanded that the Brinkmanns pay $30,000 for a “Market and Municipal Impact Study.”
By October 2018, the Brinkmanns were preparing to close on the 2016 deal to purchase the property from Bridgehampton National Bank. As the closing date approached, the town supervisor called the president of the bank and attempted to induce the bank to back out of the contract. When the bank president refused to breach the contract, the town supervisor responded, “I will never allow anything to be built on that property.”
Undeterred, Brinkmann’s Hardware closed on the property. As 2018 turned into 2019, the Brinkmanns paid $30,000 fee for a market study and requested the town grant their permits.
In response to the Brinkmanns’ request, the town escalated its pressure by ginning up a moratorium on issuing new permits. The town also offered to refund the $30,000, but the Brinkmanns refused. Instead, they insisted that their permit application was complete and should be processed.
Exasperated with the continual obstruction, the Brinkmanns sued in state court in August 2019, challenging the moratorium. The moratorium, which was extended another six months, seemed only to apply to the Brinkmanns, with the town issuing case-by-case exemptions for other projects.
Southold Resorts to Eminent Domain
Knowing that their legal options for stopping the Brinkmanns were running out, Southold took an unprecedented step. In response to the Brinkmanns’ lawsuit, the town passed a resolution authorizing the acquisition of the property via eminent domain for a “passive park.” In other words, the town intends to keep it as vacant land, without the improvements typically associated with public parks.
Cities often try to thwart law-abiding businesses through various regulatory measures—zoning, permitting, licensing—but exercising eminent domain to halt a business is an egregious abuse of one of the government’s most potent powers. The park is mere sheep’s clothing for the town’s wolf—using eminent domain to halt a business that complies with every law and regulation on the books.
The town never wanted a park on the Brinkmanns’ land and had no plans for one. In 2005 and 2007–2008, the town produced planning documents that do not mention a park, let alone one on the Brinkmanns’ property. In 2011, when the property was for sale, the town didn’t buy the land. Nor did the town ever approach Bridgehampton National Bank about buying the land when it owned the property. Only in 2019 did the town’s plans start to reference “exploring” a location for a village green. What’s more, there is a nearly identical piece of property for sale next door to the Brinkmanns’ lot that the town has never tried to purchase.
To reiterate, this is because Southold is not using eminent domain for a park; it is using eminent domain because it wants the Brinkmanns gone. That is an unconstitutional use of government power.
The town’s use of eminent domain to stop the Brinkmann’s business violates the U.S. Constitution. The Public Use Clause of the Fifth Amendment requires that Southold’s asserted public use for taking the Brinkmanns’ land is the actual reason the town is taking the property. The town’s attempt to justify its use of eminent domain by taking the land for a park is mere pretext. The town’s lack of a plan for a park, coupled with the overwhelming evidence that the town was trying to stop the hardware store from being built, proves that the town is not really using eminent domain for a public use. Instead, Southold is using eminent domain only to halt a law-abiding business. That is an unconstitutional abuse of eminent domain.
The Litigation Team
This case is being litigated by IJ Attorney Jeff Redfern, IJ Managing Attorney Arif Panju, Constitutional Law Fellow Adam Griffin and IJ Attorney Will Aronin.
About the Institute for Justice
The Institute for Justice defends property rights and advocates for economic liberty across the country. Through strategic litigation IJ vindicates the rights of entrepreneurs and business owners to earn a living against arbitrary and abusive government action. In Wisconsin, IJ successfully defended a food truck owner after his township banned all “vending on wheels” in response to his new business. In California, IJ is fighting for firefighters who are working to overcome licensing restrictions on their right to earn a living fighting fires. In Kentucky, IJ is fighting for Nepali immigrants denied their right to operate a home health-care business because of a protectionist certificate-of-need law.
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