Second Circuit Says No Pretext Limit on Government Taking Power

The Second Circuit rejected a claim by property owners that a local government violated the Takings Clause by taking private property for concededly public, but pretextual, reasons. The ruling means that the Town of Southold, New York, can take private property to build a park, even if the Town's true motive was to prevent the owners from building a hardware store.

The case, Brinkmann v. Town of Southold, arose when the Brinkmanns bought land in Southold to expand their chain of hardware stores. The Town sought several times to thwart the effort, and ultimately acquired the land to build a public park. The Brinkmanns sued, arguing that the Town's stated purpose for acquiring the land was pretextual, and that the Town really only sought their property to prevent them from building a new hardware store. The Brinkmanns argued that this violated the Takings Clause.

The Second Circuit rejected the argument. The court ruled that the Takings Clause doesn't contain a pretext limit on the government's power of eminent domain. The court explained:

A "pretext" limitation that invalidates a taking for a public park would undo this "longstanding policy of deference to legislative judgments in this field," by inviting courts "in all cases to give close scrutiny to the mechanics of a taking rationally related to a classic public use as a means to gauge the purity of the motivates of the various government officials who approved it." Such motives are by nature fragmented--and rarely, if ever, pure.

Judge Menashi dissented, arguing that "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,' or at least for 'a public purpose'--and thwarting the rightful owner's lawful use of his property is not a public purpose."