Phillip Suderman · March 13, 2024


CONTACT:  Phillip Suderman, [email protected] (850) 376-4110

ARLINGTON, Va. – Today, a federal court of appeals issued a decision in a major eminent domain case now likely bound for the U.S. Supreme Court. The 2nd U.S. Circuit Court of Appeals, in a 2-1 decision, ruled that a Long Island family hardware store could not challenge the taking of its land in the town of Southold, New York, for a “passive park,” even if the town was using the park as a cover for its true purpose: stopping the family from opening a lawful business.  

Ben and Hank Brinkmann bought undeveloped property in Southold for a new location of a family hardware store their parents started in the 1970s. But Southold’s inner circle apparently didn’t want the Brinkmanns’ business in town. So they began a campaign to wrap the new hardware store in red tape with dizzying permitting requirements, abrupt regulatory changes, and delays. But Ben and Hank persevered, jumping through every hoop. 

Unable to thwart the Brinkmanns’ perfectly legal business, the town decided to use eminent domain to seize the property for a so-called “passive park,” meaning a park that won’t be improved. There is no dispute that the park was dreamed up on the fly simply to stop the Brinkmanns. Evidence shows none of the planning normally associated with parks, and the town never mentioned the park to the Brinkmanns while they ran their multiyear permitting obstacle course. 

The Brinkmanns challenged the seizure of their land as an unconstitutional pretext. They alleged that, although a public park is a traditional use for which eminent domain may ordinarily be used, the Town does not actually want a park. The actual purpose here is simply to stop a lawful business, which is not a valid reason for using eminent domain to take private property. 

“This is about more than our family business,” said Hank Brinkmann. “Our case is about defending the right of everyone’s family business to stay in business when they play by the rules. We look forward to asking the U.S. Supreme Court to stop eminent domain abuse.” 

Two judges today ruled that a pretext claim does not exist under federal law. The majority did not dispute that “the decision to create the park was a pretext for defeating the Brinkmanns’ commercial use.” Instead, the court held that when the stated reason for the taking is a traditional public use such as a park, “courts do not inquire into alleged pretexts and motives.” This rule means that the government is free to use eminent domain as a last resort to stop lawful businesses as long as the government is willing to pretend to want a park and pay for the land. 

Judge Menashi issued a biting dissent, lambasting the majority for gutting an important constitutional protection for property: “the court’s decision grants governments virtually unlimited power over private property—as long as the governments are willing to act in bad faith.” And not only is this legally wrong, but, as Judge Menashi recognized, the majority decision has teed up a confrontation at the U.S. Supreme Court by creating disagreement across the country over the meaning of the Fifth Amendment’s takings clause: “The court’s decision today creates a split with the decisions of several state supreme courts.” 

“The federal courts have too often treated property rights as second class citizens, but the takings clause is written right there in the Fifth Amendment,” said Institute for Justice Attorney Jeff Redfern. “The Supreme Court has in recent years paid careful attention to the plain language of the Constitution and this case is an opportunity to be clear that eminent domain cannot be used in bad faith to stop lawful businesses.” 

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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: