Supreme Court refuses to hear ‘Passive Park’ public use property rights case

Today, the Supreme Court Rejected review in the case of Brinkman v. Town of Southoldraised an unusual and very difficult question about the meaning of “public use” in the Takes Clause of the Fifth Amendment. Three justices (Thomas, Gorsuch, and Kavanaugh) wanted to hear the case, but four votes were needed to grant the writ petition. I summarized the key issues in this case in a previous post (some of which were quoted by litigation attorney Robert Thomas).

The Fifth Amendment’s Expropriation Clause states that the government can only “expropriate” private property for “public use.” In cases like Berman vs. Parker and Kero vs. City of New Londonthe Supreme Court (wrongly) my view) Almost any potential benefit to the public qualifies as a “public use.” therefore, Kero The court upheld the condemnation of housing for the purpose of promoting private “economic development.”

but, Kero The majority also held that expropriation may still be invalid if the government attempts to expropriate property “merely for a public purpose, when the actual purpose was to confer a private benefit.” he pointed out.

How do courts decide whether a shooting is a pretext? Since Kerolower court decisions on this issue have been made around the world. in chapter 7 of my book Grabbing hand: Kero vs. City of New London The limits of the eminent domain, I have identified at least five different approaches taken by state and lower federal courts to this issue. Kero….

Most pretext lawsuits deal with situations in which the government condemns the transfer of property to a private party. but, Brinkman v. Town of Southoldthe U.S. Court of Appeals for the Second Circuit took up a case where a condemnation of a public lands transfer could still be a pretext because the official rationale was a very clear smokescreen for another motive.

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

The Brinkmans wanted to build a large hardware store on 1.7 acres of vacant land. The usual opposition from local residents and the town itself emerged…even an attempt by the town itself to purchase the property before the Brinkman family completed the purchase failed.

When all this failed to stop the development, the town began the process of compulsorily acquiring the prestigious land. For what? public park. More precisely, it’s a “passive use park.” What is it? This is different from your average park. Public facilities, art installations, promenades, recreational and entertainment spots, etc. No, this place had none of those things and was supposed to be a “park without major facilities or improvements”, also known as a large open space….

The next step was a 1983 federal court lawsuit by the Brinkmans “alleging pretext taking in violation of the Takes Clause of the Fifth Amendment.” The town may have argued that this shooting was for “classic” public use… However, the town actual The Brinkmans claim that the reason is What we call “malicious acts”-The town didn’t like what we were doing or trying to do with our property, so they decided to take it away from us. According to the complaint, this is the real motive for taking our property and that it is not for public use. The district court disagreed, and the case was dismissed for failure to state a claim.

A divided panel of the Second Circuit agreed…

As the opinion states, “Plaintiffs have not pointed out any purpose for the Town that violates the Acquisition Clause…”

In short (and this is a characteristic of us, not the Court), the Fifth Amendment contains a public use clause, not a “good motives clause.”

I really hope the Supreme Court takes up another public use case and overturns the decision. Kero and barmanor at least reduce those horribly flawed precedents. However, for the reasons stated in a previous post, I don’t think this lawsuit was a bad vehicle for considering these issues.

I’ve written books and numerous articles on public use issues, and rarely do I come across a public use case where I don’t know what the correct outcome should be. But this is one of those rare times.

The principles of tatemae interpretation are generally confused. However, I believe this can be used legally to counteract different opinions for forwarding to private parties. In fact, I believe that most such interpretations are unconstitutional, apart from pretextual motives. I support a “narrow” view of “public use” Under this law, the government can only take possession of publicly owned facilities or privately owned facilities that have a legal obligation to serve the entire population.

In most situations, the narrow view is satisfied by governments taking property into public ownership…. However, this case differs from most views on public ownership because the government did not actually use the condemned property for any purpose. As Judge Menashi says [in his dissenting opinion]the purported “public park” is actually a “fake.”

This increases your chances of being published possession without making it public use. Sure, even if the government doesn’t build anything on the land, it can still be “used”… But here there is no such use, not even a “passive” one. The only goal is to thwart the Brinkmans’ plans to build a hardware store, not to use the land for any positive purpose.

Presumably such blocks could still be “used”. But the problem is difficult and ambiguous….

Propositional interpretation jurisprudence has long been in disarray, and at least four Supreme Court justices have expressed interest in dissolving it, perhaps overturning it or limiting it. Kero In the process.

I really hope the Supreme Court cleans up this mess and, better yet, overturns the decision. Kero. However, this incident is not a good way to do that.

Unlike Kerov Instead, we are dealing with an unusual situation in which the government holds condemned property but has no intention of doing anything except prevent the private use it objects to. This problem is very difficult. And even if the courts get this difficult issue right, it is unlikely to improve the public use doctrine more generally.

Legal issues aside, I think the Brinkmans were victims of gross abuse of government power here. Local governments should not use it even if it does not violate the public use clause. “Despotic power” You can’t own a prominent domain just to exclude a use of the land that your neighbors don’t like. It would be even worse if a potentially valuable land use was turned into vacant land with no value to anyone. It is incorrect to call it “passive park”. However, not all wrongdoings are appropriate cases in the Supreme Court. Unfortunately, this is one of many that isn’t.

Note: The Brinkmans are represented by the Institute for Justice, with whom I have worked on other property rights matters over the years. I am not involved in this incident.