Land seizure for 'fake park' on Long Island splits U.S. appeals court

A dispute over land seizure for a purported park, later deemed a "fake park," divides a U.S. appeals court on Long Island. The case centers on eminent domain laws and the government's justification for acquiring private property. Conflicting interpretations of public benefit and property rights underscore the contentious legal battle.

Does the creation of a “fake park” justify the government seizure of private land slated for an unpopular commercial use?

In a case decided on Wednesday by the 2nd U.S. Circuit Court of Appeals, developers Ben and Hank Brinkmann alleged that the Town of Southold, on Long Island’s posh North Fork, tried all kinds of tactics to block them from turning a 1.7 acre parcel of land into a big-box hardware store, from pressuring the previous owner of the land not to sell it to them to demanding costly land use studies. When the Brinkmanns managed to overcome all of those obstacles, they alleged, the town seized their land under eminent domain to create a passive-use park.

The Brinkmanns told the 2nd Circuit that the park was a pretext: The town never said or did anything to suggest that it wanted a park in that particular spot until it ran out of other options to block the hardware store.

That “charade,” the developers said, was a violation of their constitutional rights under the Takings Clause of the Fifth Amendment.

Two of the three appellate judges who heard their case disagreed in Wednesday’s ruling. 

Judges Dennis Jacobs and Amalya Kearse acknowledged that the Brinkmanns had plausibly alleged that the park was a last-resort pretext to block the store after they cleared all of the other hurdles Southold put up. But the judges said that under U.S. Supreme Court and 2nd Circuit precedent, federal courts cannot second-guess legislative decisions to seize land for public purposes unless the seizure obviously benefits another private interest.

A park, wrote Jacobs, is a public amenity, so it’s not up to the courts to delve into Southold’s motives for seizing the land to create it.

In a dissent, Judge Steven Menashi retorted that the majority was too quick to cede the court’s authority to question the town’s intentions. “The Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause,” Menashi wrote.

That comment prompted a gentle rejoinder from Jacobs, whose opinion chided Menashi for his “urbanite prejudice” against untended parkland.

“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,” Jacobs wrote, inviting Menashi to come visit the site in the Southold village of Mattituck. “He may walk the park, breathe its air, or spread his picnic upon it,” Jacobs said. “There is nothing fake about it."

Park philosophizing aside, the case presents an important question about how much scrutiny courts should give to eminent domain seizures for purportedly public use. Menashi’s dissent argued that the 2nd Circuit’s hands-off approach in the Brinkmanns' case diverges from several state supreme court decisions that looked more skeptically at allegedly bad-faith seizures, including a 2010 Connecticut Supreme Court ruling that the town of Branford violated the Takings Clause when it seized land slated for an affordable housing development under the pretext of creating public athletic fields.

The Brinkmanns’ lead counsel, Jeffrey Redfern of the Institute for Justice, told me via email that he plans to ask the U.S. Supreme Court to take up the case.

“We think we have pretty decent odds,” Redfern said, highlighting the 2nd Circuit’s split with the Connecticut Supreme Court in that 2010 case. “The U.S. Supreme Court pays particular attention to splits between federal appellate courts and state supreme courts within the same circuit because it means the scope of your rights depend on which court you end up in,” Redfern said.

It’s notable, he added, that the 2nd Circuit majority did not discuss the 2010 Connecticut decision, even though Jacobs and Kearse said that most of Menashi’s state supreme court citations were rooted in state-law restrictions on eminent domain seizures rather than violations of the Takings Clause.

Neither Southold’s town supervisor nor its lead counsel at the 2nd Circuit, Brianna Walsh of Pillsbury Winthrop Shaw Pittman, responded to my email query.

The majority in Wednesday’s decision said its reluctance to scrutinize Southold’s motives for seizing the Brinkmanns' land stems from the U.S. Supreme Court’s landmark 2005 decision in Kelo v. City of New London. In that case, you may recall, the justices rejected property owners’ Fifth Amendment challenge to the seizure of their land for the purpose of economic revitalization, confirming the court’s “longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power.” (The Kelo opinion noted that government seizures to benefit a private party are a different story and should be blocked by courts.)

Jacobs and Kearse said the 2nd Circuit’s post-Kelo opinion in 2010’s Goldstein v. Pataki similarly endorses deference to legislators as long as their exercise of eminent domain “is rationally related to a conceivable public purpose.” In the Goldstein case, Brooklyn property owners contended that a public agency unconstitutionally seized their property for the benefit of private parties whose property values would skyrocket as a result of a state-sponsored redevelopment project. The 2nd Circuit said federal courts are barred from intervening in government takings “in all but the most extreme cases.”

In what could be a bad portent for the Brinkmanns, the property owners in the Goldstein case asked the U.S. Supreme Court to reconsider that decision, but the justices declined to take the case. (Justice Samuel Alito said he would have granted review.)

Maybe this time, the Supreme Court will be swayed by Menashi’s dire warning that under the 2nd Circuit’s interpretation of the Takings Clause, governments can abuse their power to drive “all sorts of disfavored minorities" out of town by seizing their homes under the cover of spurious plans to create “parks.”

Jacobs and Kearse said property owners have other constitutional and statutory protections against such abuses. Menashi said he does not share that confidence.

Source: Reuters