Long Island Hardware Store Owners Ask Supreme Court to Stop Town’s Bad Faith Use of Eminent Domain

Phillip Suderman · June 11, 2024

WASHINGTON – When every legal effort to stop someone from using their property has failed, can the government simply take the land using eminent domain? That is the question at the heart of a new U.S. Supreme Court petition filed by a family-owned hardware store business whose property was taken by a small Long Island town. The Brinkmann family, owners of five Long Island stores, appealed their Institute for Justice (IJ) case after a split U.S. 2nd Circuit Court of Appeals determined that it could not look into Southold’s true reasons for using eminent domain to take the Brinkmanns’ property away from them.

“The Second Circuit held that the government can take your property for almost any reason at all—including because it just doesn’t like you—so long as the government lies about why it is using eminent domain,” said IJ Senior Attorney Jeff Redfern. “This is a dangerous precedent, and the Supreme Court should take this opportunity to clarify that it is unconstitutional to use eminent domain in bad faith, simply to stop someone from making a lawful use of their property.”

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 five hardware stores across Long Island. The Brinkmanns purchased a plot of commercial zoned property in Southold in 2016 and planned to build a store there.

But the town did everything it could to stop construction. After failing to drive the Brinkmanns away by attempting to interfere with the Brinkmanns’ land purchase, then imposing an exorbitant fee for a market impact study that the town never performed after being paid, and even deploying a selectively enforced moratorium on building permits to stifle the Brinkmanns’ permit application; the town voted to take the land by eminent domain for 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.

“If the maneuver that Southold used to take our property is allowed to stand, no one can purchase property with the confidence that they will be able to use it,” said Ben Brinkmann. “We played by the rules, but the ground kept shifting under our feet until our property was simply taken by force. Courts should not turn their eyes from eminent domain abuse.” 

In 2021, the Brinkmanns sued with IJ to prevent the town from using eminent domain. The district court and then appeals court sided with the town, which currently has possession of the property.

The majority of the 2nd Circuit panel concluded that “when the taking is for a public purpose, courts do not inquire into alleged pretexts and motives.” However, Judge Steven J. Menashi strongly disagreed, recognizing that courts across the country have long invalidated bad-faith takings to stop otherwise legitimate uses of property. He also recognized that the Second Circuit panel squarely split with several state supreme courts, saying that “the Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause.”

“If you follow the law, you get to decide what to do with your property” said IJ Managing Attorney Arif Panju. “The government cannot use eminent domain to just stop a property owner from legally using their land, and it gets no free pass to do so by falsely claiming it is taking the land for a park.”

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To arrange interviews on this subject, journalists may contact Phillip Suderman, IJ’s Communications Project Manager at [email protected] (850) 376-4110. More information on the case is available at:  https://ij.org/case/long-island-hardware-store/