ARLINGTON, Va.—Yesterday, the United States Supreme Court denied a writ of certiorari to hear the case of Ben and Hank Brinkmann, brothers who own a family-run chain of hardware stores in Long Island, New York. Justices Thomas, Gorsuch, and Kavanaugh had voted to accept the case, and they took the unusual step of recording their votes publicly. It takes four votes, however, to grant a petition. The question put before the Court by the petition: when every legal effort to stop someone from using their property has failed, can the government simply take the land using eminent domain? The case, Brinkmann, et al. v. Town of Southold, New York, would have had potentially wide-ranging ramifications for how and when the government can take and use property.
Unfortunately, the Brinkmanns have now exhausted their legal options. The 2-1 split decision by the 2nd U.S. Circuit Court of Appeals ruling against the Brinkmanns will stand, allowing government entities the power to take property even if they never intend to use it for anything other than a “passive park.”
“Every petition to the Supreme Court is a long shot because the Court only takes a few dozen cases each year, out of thousands of petitions,” said Institute for Justice Senior Attorney Jeff Redfern. “While the Brinkmanns’ case may be over, we will continue to represent property owners all over the country, whenever they are threatened by eminent domain abuse. We are not giving up, and we will be back before the Supreme Court again.”
Started in 1976 by Tony and Pat Brinkmann, Brinkmann’s Hardware has grown from a single store in Sayville, New York, to five branches spread across Long Island. In 2016 after years of searching and planning Ben and Hank, who took over the business from their parents, found a perfect spot of commercial zoned property in Southold.
But the town did everything it could to stop construction. After failing to drive the Brinkmanns away—by attempting to interfere with their purchase of the land, 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.
“The court’s decision is a disappointment but our decision to bring this case to court was still the right thing to do,” said Ben and Hank Brinkmann. “Government shouldn’t be able to get away with these abuses of power and shining a light on them like we did with the help of IJ will continue to build public support so that one day no one will have to go through what we have.”
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 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.
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To arrange interviews on this subject, journalists may contact Phillip Suderman, IJ’s Communications Project Manager, at [email protected] or (850) 376-4110. More information on the case is available at: https://ij.org/case/long-island-hardware-store/