Second Circuit Rules that a “Passive Park” Qualifies as a Public Use Authorizing Use of Eminent Domain—Even if this Rationale is a Pretext for a Desire to Block Private Owners’ Plan to Build a Hardware Store
The Takings Clause of the Fifth Amendment says the government may only “take” private property for a “public use.” In cases like Berman v. Parker and Kelo v. City of New London, the Supreme Court has ruled (wrongly, in my view) that almost any potential benefit to the public qualifies as a “public use.” Thus, in Kelo the Court upheld the condemnation of homes for purposes of promoting privately owned “economic development,” even though the development plan in question was so badly flawed that the condemned property ended up (for many years) being used only by a colony of feral cats.
But the Kelo majority also indicated that a taking can still be invalidated if the government tries to “take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.” Under Kelo, pretextual takings are an exception to the general rule that the government can condemn property for virtually any reason.
How do courts determine whether a taking is pretextual? Since Kelo, lower-court decisions on that issue have been all over the map. In Chapter 7 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, I identified at least five different approaches to this issue adopted by state and lower federal courts since Kelo (see also this article).
Most pretextual takings cases deal with situations where the government condemns property for transfer to a private party. But in Brinkmann v. Town of Southold, the US Court of Appeals for the Second Circuit addressed a case where a condemnation for transfer to public ownership might still be pretextual, because the official rationale was a pretty obvious smokescreen for a different motive.
Prominent takings litigators Michael Berger and Robert Thomas have helpful summaries of the facts and what the court decided. Here’s Thomas:
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….” And we all know that when the legislature
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