Andrew Wimer
Andrew Wimer · May 5, 2021

CENTRAL ISLIP, N.Y.—When every effort to stop a business from operating on its property has failed, can the government just take the land using eminent domain? That is the question at the heart of a new lawsuit filed by the owners of Brinkmann’s Hardware, a family-owned business with several Long Island locations that has teamed up with the Institute for Justice (IJ). For years, the Brinkmanns have worked to open a new store on property they own in the town of Southold. But the town responded by using various methods to stop the Brinkmanns from earning an honest living on their property. The town’s attempts to stifle the Brinkmanns’ new hardware store have failed, so it has chosen to use the power of eminent domain to take the Brinkmanns’ land.

The town says it wants to take the land for a park—not because the town was planning for a park, but because that appears to be the only way to stop the Brinkmanns. This extreme tactic would not only deprive the Brinkmanns of their property, but could also provide a model for other towns to similarly misuse eminent domain to prevent legal development of property. To protect their rights to earn an honest living and to their property, the Brinkmanns have filed a federal lawsuit in the U.S. District Court for the Eastern District of New York.

“The Brinkmanns’ hardware store is an entirely legal business, and Southold has no valid reason to stop them from earning a living on their property,” said IJ Attorney Jeffrey Redfern. “The Brinkmanns satisfy all legal requirements for building on the land they own, so the town has decided to just take their property. That is unfair, unconstitutional and represents a threat to businesses and property owners nationwide.”

Brinkmann’s Hardware was started by Tony and Pat Brinkmann with a single store in Sayville, New York, in 1976. Today, the company is still family-owned and operated by their children—Mary, Ben and Hank. Today, they own four hardware stores across Long Island.

The Brinkmanns purchased the plot of commercial zoned property in Southold in 2016 and planned to open a new location of their growing chain of hardware stores. But the town has done everything possible to stop the construction. After failing to drive the Brinkmanns away by attempting to interfere with the Brinkmanns’ land purchase, then imposing exorbitant permitting fees, and even deploying a selectively enforced moratorium on building permits after the Brinkmann’s applied for their permit; the town voted to take the land by eminent domain in the fall of 2020. Still, the Brinkmanns refuse to surrender.

“The town hasn’t been able to find a legal way to stop our hardware store, so now they want to just take our land,” said Hank Brinkmann. “From the beginning we’ve tried to fit into the community and follow the rules, but the rules keep shifting under our feet.”

“Taking our land by eminent domain would not only deprive us of the property we invested in to grow our business, but also would take away the opportunity to earn an honest living that the new store represents,” said Ben Brinkmann. “That is why we are keeping up this fight.”

The town’s interest in a park on the land came years into the Brinkmanns’ attempt to build their store. In 2005 and 2007–2008, the town produced planning documents that do not mention a park, let alone one on the Brinkmanns’ property. In fact, there is another commercial zoned property for sale right next door that the town could purchase if it actually wanted a park. But the town has no plans to do anything with the Brinkmanns’ land and proposes only a “passive park” that would leave in place the remnants of an old home and greenhouses.

The U.S. Constitution requires that eminent domain only be used for a true public use, but it is apparent that Southold’s attempt to take the land for a park is just a convenient excuse. Southold is using eminent domain only to halt a law-abiding business.

“The town’s claim that it needs to put a park on the Brinkmanns’ property is a sham. They just want to stop the Brinkmanns from opening their new store,” said IJ Senior Attorney Arif Panju. “If you follow the law, you should be allowed to open your business on the property that you own.”

The Institute for Justice advocates for economic liberty and defends property rights across the country. In Wisconsin, IJ successfully defended a food truck owner after his township banned all “vending on wheels” in response to his new business. In a Tennessee case that went to the Supreme Court, IJ successfully overturned a state law that banned recent residents from owning a liquor store. And after the Supreme Court narrowly affirmed that economic development was a public use in Kelo v. New London, IJ successfully advocated for stronger protections for property owners in eight state supreme courts and 43 state legislatures.