Success in business should depend on a lot of things: The quality of your product. Your customer service. Your marketing savvy. What shouldn’t it depend on? How much local bureaucrats like you. Unfortunately, all too often, city and county officials act as though that is the only thing that matters.
So it is with the Brinkmann family’s hardware business. Originally founded by Pat and Tony Brinkmann in 1976, Brinkmann’s has grown into a regional success story with four Long Island locations that manage to compete with big box stores, largely thanks to the hands-on approach of Pat and Tony’s two sons and daughter.
But when the Brinkmanns wanted to open a new branch of their store on land they’d purchased in Southold, New York, they were met with immediate and unrelenting hostility. The town didn’t want outsiders building on its main thoroughfare, but there was no legitimate basis for denying the family business the right to open there. So it embarked on a series of regulatory delays and demands, hoping the Brinkmanns would just give up and go away.
Southold officials demanded $30,000 in fees for an “impact” study long after the family had spent thousands on engineers to design the new store. The mayor called the head of the local bank personally to try to induce it to back out of its contract with the Brinkmanns. The town council implemented a “moratorium” on building permits that seemed to apply only to the Brinkmanns, with the town offering case-by-case exemptions for other projects.
The Brinkmanns pushed through the bureaucracy: They paid the exorbitant fees. They prevailed in a lawsuit challenging Southold’s bogus moratorium. They stood firm and insisted that they had complied with the town’s requirements and that their permit should be processed. Finally, almost five years after starting their project, they were on the cusp of breaking ground.
Then the town decided to change the rules again and started a hearing to take the Brinkmanns’ land through eminent domain.
As those familiar with IJ’s work in this area know, eminent domain can be used to take private property only for a public use. So Southold claimed to suddenly want to build a park on the property. The town had expressed no interest in building a park until the Brinkmanns applied for a building permit for their hardware store. What’s more, if the town simply wanted a park, the vacant land next door to the Brinkmanns’ proposed store is currently for sale.
But the town doesn’t even pretend it actually wants to build a park—or anything at all. Instead, town officials say the Brinkmanns’ land will be turned into a “passive park,” with no park-related facilities for the community to enjoy.
That’s not a “park”; it’s a vacant lot.
A vacant lot is not a public use. Getting rid of out-of-town entrepreneurs who might out-compete existing businesses is not a public use. And taking land for one reason when it’s really for another reason is an illegal pretextual taking. That is why the Brinkmanns have teamed up with IJ to file a federal lawsuit challenging the taking of the Brinkmanns’ land. The law must apply neutrally to everyone, and consumers, not local officials, should decide which stores succeed and which ones fail. As town leaders in Southold seem to have forgotten those basic truths, we at IJ are happy to step in and remind them.
Arif Panju is managing attorney of IJ’s Texas office.
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