Here's the latest in a case we've been following.
Our friends at the Institute for Justice have filed this cert petition asking the Supreme Court to take up the case where a New York town eminent domained the Brinkmann property for a public park.
What's wrong with that, you ask...isn't a public park a "classic" public use? Yes. But the twist here is there was also a showing that what actually motivated the taking wasn't some need for another public park in the town, but rather the public's dislike of the use the Brinkmanns intended for their land.
These are what we call "spite takings," where the main purpose behind a condemnation isn't really to do something public with the land, but to stop a disfavored use. Are these ok under the Public Use requirement because -- as the Second Circuit panel majority held -- that who cares about motivation as long as the use is public and not a pretext to a private benefit. Or does it offend the Public Use Clause -- as other courts have held -- to say you're taking it for some public use, when your real motivation is something else (even if not a private benefit)?
Underlying all this is what we see as the predicate question: should the government be in the business of using eminent domain to forcibly acquire private property because the owner is making -- or as here, proposes to make -- an allowed use of the property that the government or the public doesn't like?
Here's the Question Presented:
The Second Circuit, in a 2-1 decision over a dissent by Judge Menashi, held that the Public Use Clause does not prohibit taking property when the asserted public use is a sham. The panel agreed that the complaint alleges “facts sufficient to support a finding” that Respondent Town of Southold’s “decision to create a park was a pretext” for stopping Petitioners from opening a hardware store. But the majority held that, as long as the Town puts a park on the land, it does not matter that the government’s true purpose is to run an otherwise law-abiding property owner out of town.Judge Menashi would have held that “the Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause.” A park does not satisfy the public-use requirement when its actual purpose and but-for cause is illegitimate, as stopping lawful activity is. Judge Menashi would have “adhere[ d] to precedent providing that a pretextual, bad faith taking violates the public use requirement.” He recognized that “the court’s decision creates a split with decisions of several state supreme courts,” including Connecticut, meaning that the Takings Clause rights of Connecticut citizens now depend entirely on whether the case is in state or federal court.As framed by the majority below, the question presented— indeed “[t]he only question”—is “whether the Takings Clause is violated when a property is taken for a public amenity as a pretext for defeating an owner’s plans for another use.”
Here's IJ's media release about the petition.
Stay tuned for more.
Petition for a Writ of Certiorari, Brinkmann v. Town of Southold, No. 23-___ (U.S. June 11, 2024)
