Supreme Court Refuses to Hear “Passive Park” Public Use Property Rights Case

As we speak, the Supreme Court docket refused to overview the case of Brinkmann v. City of Southold, which raised an uncommon and intensely tough problem concerning the which means of “public use” within the Takings Clause of the Fifth Modification. Three justices (Thomas, Gorsuch, and Kavanaugh) wished to take the case, however 4 votes are essential to grant a petition for writ of certiorari. I summarized the important thing problem within the case in a earlier publish about it (partly by quoting takings litigator Robert Thomas):

The Takings Clause of the Fifth Modification says the federal government might solely “take” personal property for a “public use.” In circumstances like Berman v. Parker and Kelo v. Metropolis of New London, the Supreme Court docket has dominated (wrongly, in my opinion) that nearly any potential profit to the general public qualifies as a “public use.” Thus, in Kelo the Court docket upheld the condemnation of properties for functions of selling privately owned “financial growth…”

However the Kelo majority additionally indicated {that a} taking can nonetheless be invalidated if the federal government tries to “take property beneath the mere pretext of a public goal, when its precise goal was to bestow a personal profit….”

How do courts decide whether or not a taking is pretextual? Since Kelo, lower-court choices on that problem have been everywhere in the map. In Chapter 7 of my ebook The Greedy Hand: Kelo v. Metropolis of New London and the Limits of Eminent Area, I recognized not less than 5 completely different approaches to this problem adopted by state and decrease federal courts since Kelo….

Most pretextual takings circumstances take care of conditions the place the federal government condemns property for switch to a personal occasion. However in Brinkmann v. City of Southold, the US Court docket of Appeals for the Second Circuit addressed a case the place a condemnation for switch to public possession would possibly nonetheless be pretextual, as a result of the official rationale was a reasonably apparent smokescreen for a unique motive….

[what follows is excerpted from Robert Thomas’s summary of the case and lower court rulings:]

The Brinkmanns wished to construct a giant field ironmongery store on a 1.7 acre vacant parcel. The standard objections from space residents and the City itself appeared…  Even a failed try by the City to purchase the property itself earlier than the Brinkmanns closed their buy.

When all these did not reach stopping the event, the City started proceedings to forcibly purchase the land by eminent area. What for, you ask? A public park. Extra exactly, a “passive use park.” What’s that, you ask? It is not what you would possibly assume make a typical public park. Issues like public amenities, artwork installations, strolling trails, leisure and leisure spots…. No, this was to have none of these issues, it was to be “a park with no vital amenities or enhancements,” also called a giant open, empty subject….

Subsequent step was a federal court docket part 1983 motion by the Brinkmanns, “alleging a pretextual taking in violation of the Takings Clause of the Fifth Modification….” The City might have claimed that the taking was for a “traditional” public use…., however the City’s precise purpose, the Brinkmanns alleged, was what we name a “spite taking”—the City did not just like the use we’re making or going to make of our property, so determined to take it from us. This was the true motivation to take our property, and that is not a public use, in line with the grievance. The district court docket wasn’t having any of it, and dismissed for failure to state a declare.

A divided panel of the Second Circuit affirmed…..

Because the opinion put it, “Plaintiffs haven’t pointed to any City goal that violates the Takings Clause…”

In brief (and that is our characterization, not the court docket’s), the Fifth Modification comprises a Public Use Clause, not a “Good Motivation Clause…”

I might very very like the Supreme Court docket to take one other public use case, and overrule Kelo and Berman, or not less than reduce on these badly flawed precedents. However, for causes famous in my earlier publish, I feel this case would have been a foul automobile for reviewing these points:

Having written a ebook and quite a few articles on public use points, I hardly ever run throughout a public use case the place I am uncertain what the best consequence needs to be. However that is a type of uncommon instances.

Pretextual takings doctrine is a large number typically. However I feel it may well legitimately be used to strike down a wide range of takings for switch to personal events; certainly, I consider most such takings are unconstitutional even except for the pretextual motives, as a result of I assist the “slender” view of “public use” beneath which the federal government might solely take property for publicly owned amenities or personal ones which have a authorized responsibility to serve the complete public.

In most conditions, the slender view is happy when the federal government takes property for public possession…. However this case is completely different from most takings for public possession as a result of the federal government is not really utilizing the condemned property for something. As Decide Menashi places it [in his dissenting opinion], the supposed “public park” is definitely “pretend.”

This opens up the chance there may be public possession with out public use. To make certain, there can generally be “use” even when the federal government would not construct something on the land it takes…. However there isn’t any such use right here, not even a “passive” one. The one aim is to dam the Brinkmanns’ plan to construct a ironmongery store, to not use the land for any affirmative goal.

Maybe such blocking can nonetheless be a “use.” However the problem is a tough and murky one…..

Pretextual takings jurisprudence has lengthy been a large number, and not less than 4 Supreme Court docket justices have expressed curiosity in clearing it up, and maybe overruling or limiting Kelo within the course of.

I very a lot hope the Supreme Court docket does clear up the mess and—higher nonetheless—overrules Kelo. However this case is just not a great automobile for that.

Not like Kelo, it doesn’t deal with the difficulty of condemnations for switch to personal events.vIt as an alternative offers with the weird state of affairs the place the federal government retains the condemned property however has no need to do something with it aside from block a personal use it objects to.  The problem is a particularly tough one. And even when the Court docket resolves this tough query accurately, doing so wouldn’t do a lot to enhance public use doctrine extra typically.

Authorized points apart, I feel the Brinkmanns had been victims of an egregious abuse of presidency energy right here. Even when it would not violate the Public Use Clause to take action, native governments should not use the “despotic energy” of eminent area merely to get rid of makes use of of property neighbors dislike. It is even worse in the event that they find yourself turning a probably beneficial land use into an empty lot of no worth to anybody. Calling it a “passive park” would not make that proper. However not each injustice makes a great Supreme Court docket case. Sadly, this is without doubt one of the many that does not.

NOTE: The Brinkmanns represented by the Institute for Justice, with which I’ve labored on different property rights points over time. I’ve no involvement on this case.