In Brinkmann v. Town of Southold, No. 22-2722 (Mar. 13, 2024), the U.S. Court of Appeals for the Second Circuit addressed a longstanding issue left unresolved by the Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005): is it enough that a condemnor's professed use qualifies as a public use, or may a property owner nonetheless challenge a taking on the grounds that the real reason for the taking is not a public use?
Yes, the "pretext" issue is back!
The facts of the case are pretty straightforward. The Brinkmanns wanted to build a big box hardware store on a 1.7 acre vacant parcel. The usual objections from area residents and the Town itself appeared (you know the drill): a store like this would result in too much additional traffic (traffic study said no), special permits and impact studies are needed (the owners began to comply), a moratorium on building permits in a one-mile radius, "despite the county government's finding that the moratorium lacked supportive evidence' (oops). Slip op. at 3. Even a failed attempt by the Town to buy the property itself before the Brinkmanns closed their purchase.
When all those didn't succeed in stopping the development, the Town began proceedings to forcibly acquire the land by eminent domain. What for, you ask? A public park. More precisely, a "passive use park." What's that, you ask? It isn't what you might think make a typical public park. Things like public facilities, art installations, walking trails, recreational and entertainment spots and stuff. No, this was to have none of those things, it was to be "a park with no significant facilities or improvements," also known as a big open, empty field.
Next step was a federal court section 1983 action by the Brinkmanns, "alleging a pretextual taking in violation of the Takings Clause of the Fifth Amendment." Slip op. at 4. The Town may have claimed that the taking was for a "classic" public use (a public park, even if it is a "passive use park"), but the Town's actual reason, the Brinkmanns alleged, was what we call a "spite taking" -- the Town didn't like the use we're making or going to make of our property, so decided to take it from us. This was the real motivation to take our property, and that's not a public use, according to the complaint. The district court wasn't having any of it, and dismissed for failure to state a claim.
A divided panel of the Second Circuit affirmed. This "pretext" thing you allege, property owner, is merely a "passing reference." Slip op. at 6 (quoting Goldstein v. Pataki, 516 F.3d 50, 61 (2d Cir. 2008)). And we all know that when the legislature has declared that a certain use or interest is a public one, the courts have no role because "the public interest has been declared in terms well-nigh conclusive." Slip op. at 7 (quoting Berman v. Parker, 348 U.S. 26, 32 (1954)). Taking property by eminent domain is just legislation, property owners, so go make your fight in the political process. Don't bother the courts.
"There can be no dispute that a public park, even an unimproved one, is a public use." Slip op. at 8. The court distinguished between pretext for private benefit, and pretext for some use that isn't public:
While in some cases there may be plausible allegations that the exercise of eminent domain supposedly for a park had been pretext for an intention to use taken property for a different--and private--purpose, Plaintiffs’ complaint does not allege that the Town meant to confer any such private benefit or intends to use the property for anything other than a public park.
Id.
The majority focused on the complaint's assertion that the Town's supervisor stated, "I will never allow anything to be built on this property." Id. In the majority's view, that statement revealed that the Town's motivation was just fine, because it didn't matter that the taking was for spite, as long as it wasn't for a private use or purpose. As the opinion put it, "Plaintiffs have not pointed to any Town purpose that violates the Takings Clause." Id.
In short (and this is our characterization, not the court's), the Fifth Amendment contains a Public Use Clause, not a "Good Motivation Clause." Or if you want an even shorter story: rational basis review.
There's no "purity of motives" requirement, nor any real way to figure out why "[d]ifferent legislators may vote for a single measure with different goals[,]" the majority concluded. Slip op. at 11. The Town may have "bad reasons for doing good things." Id. This is an objective test, not a subjective one, and all that matters is what the Town did, not what it or its officials might have thought.
The majority rejected other cases that might seem to have gone in a different direction -- including this one from Colorado and this case from Pennsylvania -- that are about these type of "bad faith" takings. The court distinguished each case, concluding they were based on state constitutions, state statutes that allow a more searching judicial inquiry into motive, or regulatory takings doctrine.
The majority also snarked at the dissenting judge's assertion that the "passive use park" (what the dissent labeled a "fake park") was pretty good evidence of improper motive:
So long as public land is open to the air and to the people, it is a park; and that, of all things, cannot be faked. The author of the dissent may come to 12500 Main Road, Mattituck, NY, and he may walk the park, breathe its air, or spread his picnic upon it. There is nothing Fake about it.
Slip op. at 24-25.
The majority's big vibe was that if the Town says it wants the land for a park, then who cares if the Town might have other reasons? That's a rabbit hole where the majority has a long way to fall before reaching the bottom. For that bottom, you need look no further that California's Bruce's Beach, where the taking was for a public park, even though the real motivation was to deprive the African-American owners of the property. A classic "spite taking," if we're talking "classic" takings. The Brinkmann majority was quick to point out, however, that racially discriminatory takings are no good) because a taking must be otherwise in accordance with law before the courts apply rational basis review. To which we ask why is that only an Equal Protection problem and not also a Public Use problem?
The dissenting opinion by Judge Menashi focused on the mechanics of delving into bad faith takings. There's a lot there, so we're going to cover the dissenting opinion in a separate post.
Stay tuned, something tells us this case isn't over yet.
Brinkmann v. Town of Southold, No. 22-2722 (2d Cir. Mar. 13, 2024)
