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

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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 DomainI 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 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….

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…”

In short (and this is our characterization, not the court’s), the Fifth Amendment contains a Public Use Clause, not a “Good Motivation Clause…”

The key point in the majority opinion is that a taking can only be pretextual if the official rationale is a pretext for a scheme to benefit a private party. If, however, the government condemns property and does not transfer it to a private party or try to benefit such a party, then it doesn’t matter whether the official stated purpose was the real motive for the taking or not.

The dissenting opinion by Judge Steven Menashi argues that a taking can be pretextual even if there is no plan to benefit a private party:

The court emphasizes that “[p]ublic parks have been recognized as a ‘public use’ for more than a century” and that a court should not “substitute its judgment for a legislature’s judgment as to what constitutes a public use…”  But no one disputes that a public park would be a public use. The plaintiffs instead argue that the Town of Southold does not want a public park. The court admits that the plaintiffs are right. The court acknowledges that the complaint in this case “alleges facts sufficient to support a finding that the decision to create the park was a pretext for defeating the Brinkmanns’ commercial use” of their own property and that the Town decided to seize the Brinkmanns’ property for a park only “after varied objections and regulatory hurdles that the Town interposed and that the Brinkmanns did or could surmount….”  In other words, the Town did not like what the owners were doing with their property, but the Town was unable to muster the political support to pass a zoning law or to deny a permit. So the Town of Southold grabbed the land for itself….

The Constitution has nothing to say, according to the court, “when a property is taken for a public amenity as a pretext for defeating the owner’s plans for another use…”

That is incorrect. In my view, the Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause. A taking of property must be “for public use,” U.S. Const. amend. V— or at least for “a public purpose,” Kelo v. City of New London, 545 U.S. 469, 478 (2005)—and thwarting the rightful owner’s lawful use of his

property is not a public purpose. I dissent.

Menashi goes on to point out (correctly) that Supreme Court precedent allows scrutiny of government motives in a wide variety of other cases (e.g.—when seemingly neutral policies are pretexts for efforts to engage in unconstitutional discrimination on the basis of race or religion). He also cites various state court cases where takings for pretextual motives were invalidated, even in some situations where the condemned property was not transferred to a private party. The majority distinguishes those cases on the grounds that they dealt with state constitutional law, had somewhat different facts, or were different for other reasons.

Having written a book and numerous articles on public use issues, I rarely run across a public use case where I’m unsure what the right outcome should be. But this is one of those rare times.

Pretextual takings doctrine is a mess generally. But I think it can legitimately be used to strike down a variety of takings for transfer to private parties; indeed, I believe most such takings are unconstitutional even aside from the pretextual motives, because I support the “narrow” view of “public use” under which the government may only take property for publicly owned facilities or private ones that have a legal duty to serve the entire public.

In most situations, the narrow view is satisfied when the government takes property for public ownership—even if the motive for the taking is unrelated to the potential benefits of the new use. So far, I side with the majority. But this case is different from most takings for public ownership because the government isn’t actually using the condemned property for anything. As Judge Menashi puts it, the supposed “public park” is actually “fake.”

This opens up the possibility there can be public ownership without public use. To be sure, there can sometimes be “use” even if the government doesn’t build anything on the land it takes. For example, it could decide to use the property as a nature preserve. But there is no such use here, not even a “passive” one. The only goal is to block the Brinkmanns’ plan to build a hardware store, not to use the land for any affirmative purpose.

Perhaps such blocking can still be a “use.” But the issue is a difficult and murky one.

Both Robert Thomas and Michael Berger suggest the Supreme Court might take up this case. Pretextual takings jurisprudence has long been a mess, and at least four Supreme Court justices have expressed interest in clearing it up, and perhaps overruling or limiting Kelo in the process.

I very much hope the Supreme Court does clean up the mess and—better still—overrules Kelo. But this case is not a good vehicle for that.

Unlike Kelo, it does not address the issue of condemnations for transfer to private parties.It instead deals with the unusual situation where the government retains the condemned property but has no desire to do anything with it other than block a private use it objects to.  The issue is an extremely difficult one. And even if the Court resolves this hard question correctly, doing so would not do much to improve public use doctrine more generally.

For those reasons, I would prefer the Supreme Court take up a public use case whose facts are more similar to those of Kelo. At the very least, it should involve the condemnation of property for transfer to a new private owner.

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