No.

_______

In The
Supreme Court of the United States
BEN BRINKMANN, HANK BRINKMANN,
MATTITUCK 12500 LLC.,
Petitioners,
v.
TOWN OF SOUTHOLD, NEW YORK,
Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals
for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

JEFFREY T. ROWES JEFFREY REDFERN

ARIF PANJU Counsel of Record
CHRISTEN MASON HEBERT WILLIAM ARONIN
INSTITUTE FOR JUSTICE INSTITUTE FOR JUSTICE
816 Congress Avenue 901 N. Glebe Road
Suite 970 Suite 900
Austin, TX 78701 Arlington, VA 22203
(512) 480-5936 (703) 682-9320
[email protected] [email protected]
[email protected] [email protected]
[email protected]
Counsel for Petitioners
 i

QUESTION PRESENTED

The Second Circuit, in a 2-1 decision over a dissent

by Judge Menashi, held that the Public Use Clause
does not prohibit taking property when the asserted
public use is a sham. The panel agreed that the com-
plaint alleges “facts sufficient to support a finding”
that Respondent Town of Southold’s “decision to cre-
ate a park was a pretext” for stopping Petitioners
from opening a hardware store. But the majority held
that, as long as the Town puts a park on the land, it
does not matter that the government’s true purpose is
to run an otherwise law-abiding property owner out
of town.

Judge Menashi would have held that “the Consti-

tution contains no Fake Park Exception to the public
use requirement of the Takings Clause.” A park does
not satisfy the public-use requirement when its actual
purpose and but-for cause is illegitimate, as stopping
lawful activity is. Judge Menashi would have “ad-
here[d] to precedent providing that a pretextual, bad
faith taking violates the public use requirement.” He
recognized that “the court’s decision creates a split
with decisions of several state supreme courts,” in-
cluding Connecticut, meaning that the Takings
Clause rights of Connecticut citizens now depend en-
tirely on whether the case is in state or federal court.

As framed by the majority below, the question pre-

sented—indeed “[t]he only question”—is “whether the
Takings Clause is violated when a property is taken
for a public amenity as a pretext for defeating an
owner’s plans for another use.”
 ii

PARTIES TO THE PROCEEDING

Petitioners are Ben Brinkmann, Hank Brink-

mann, and their company Mattituck 12500 LLC. Re-
spondent is the Town of Southold, New York.
 iii

CORPORATE DISCLOSURE STATEMENT

Petitioner Mattituck 12500 LLC is a nongovern-

mental corporation. It has no parent corporation, and
no publicly held company owns 10 percent or more of
its stock.
 iv

RELATED PROCEEDINGS

The following proceedings are directly related to

this case:

x Brinkmann et al. v. Town of Southold, No. 22-

2722, 2d Cir. (Mar. 13, 2024) (affirming grant
of defendant’s motion to dismiss);

x Brinkmann et al. v. Town of Southold, No. 2:21-

cv-02468, E.D.N.Y. (Sept. 30, 2022) (granting
defendant’s motion to dismiss);

x Brinkmann et al. v. Town of Southold, No. 21-

2644, 2d Cir. (Dec. 6, 2021) (recognizing stipu-
lated withdraw of appeal of denial of request
for a preliminary injunction); and

x Brinkmann et al. v. Town of Southold, No. 2:21-

cv-02468, E.D.N.Y. (Sept. 20, 2021) (denying
plaintiffs’ motion for a preliminary injunction).

Other proceedings that are not directly related to

this case but involve the same parties are:

x In re Brinkmann Hardware Corp. et al. v.

Southold, No. 02790-2019, N.Y. Sup. Ct. Suf-
folk County (Jan. 13, 2023) (stipulation of dis-
continuance); and

x In re Southold v. Mattituck 12500, LLC, No.

608406-2021, N.Y. Sup. Ct. Suffolk County
(still pending).
 v

TABLE OF CONTENTS

Page
PETITION FOR A WRIT OF CERTIORARI ............ 1

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED ..... 1

INTRODUCTION ...................................................... 1

STATEMENT ............................................................. 4

A. Factual Background.................................... 4

B. Proceedings Below ...................................... 6

REASONS FOR GRANTING THE PETITION ........ 9

I. The Second Circuit squarely split with five

state supreme courts on the scope of the
Public Use Clause’s protection against
pretextual, bad-faith takings ....................... 9

A. The Second Circuit split with

Connecticut, Massachusetts, Pennsy-
lvania, Georgia, and Rhode Island on
whether the Public Use Clause
prohibits pretextual, bad-faith takings .. 9

B. A Connecticut citizen’s Section 1983

claim against a pretextual, bad-faith
taking depends solely on state versus
federal court............................................ 12
 vi

II. The Second Circuit misread this Court’s

precedent and got the Public Use Clause
wrong ............................................................ 13

III. Correcting the Second Circuit’s error is

important ..................................................... 16

A. The government’s true purpose for

taking property matters ......................... 17

B. Identifying actual purposes is just as

workable in the takings context as in
other contexts because legitimate
takings have an objective order of
operations ............................................... 23

IV. This case offers a clean, single-question

vehicle .......................................................... 27

CONCLUSION ......................................................... 27
 vii

TABLE OF APPENDICES

Page

APPENDIX A — Order and Dissenting Opinion

of the Second Circuit (Mar. 13,
2024) ............................................. 1a

APPENDIX B — Order of the United States

District Court for the Eastern
District of New York (Sept. 30,
2022) ........................................... 57a

APPENDIX C — Complaint for Declaratory

and Injunctive Relief (May 4,
2021) ........................................... 72a
 viii

TABLE OF AUTHORITIES

Page
Cases

Borough of Essex Fells v. Kessler Inst. for

Rehabilitation, Inc.,
673 A.2d 856 (N.J. Super. Ct. Law Div. 1995). ... 11

Church of the Lukumi Babalu Aye v. City of

Hialeah,
508 U.S. 520 (1993) ........................................ 18–19

City of Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985) ........................................ 18, 21

City of Lafayette v. Town of Erie Urb. Renewal

Auth.,
434 P.3d 746 (Colo. App. 2018). ........................... 11

County of Sacramento v. Lewis,

523 U.S. 833 (1998) .............................................. 21

Earth Mgmt., Inc. v. Heard County,

248 Ga. 442 (1981) ................................................ 10

Eychaner v. City of Chicago,

141 S. Ct. 2422 (2021) .......................................... 15

Garvey Farm LP v. City of Elsmere,

No. CV 2:23-015-DCR, 2023 WL 3690229 (E.D.
Ky. May 26, 2023) ................................................. 11

Haw. Hous. Auth. v. Midkiff,

467 U.S. 229 (1984) ........................................ 13, 15
 ix

Kelo v. City of New London,

545 U.S. 469 (2005) .................................. 13–18, 26

Knick v. Twp. of Scott,

588 U.S. 180 (2019) .............................................. 20

Middletown Twp. v. Lands of Stone,

595 Pa. 607 (2007) ................................................ 10

New England Estates, LLC v. Town of Branford,

294 Conn. 817 (2010) ............. 2, 9, 12, 14, 22, 25–26

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022) .................................................. 20

Pheasant Ridge Assocs. Ltd. P’ship v. Town of

Burlington,
399 Mass. 771 (1987) ...................................... 10, 25

R.I. Econ. Dev. Corp. v. The Parking Co., L.P.,

892 A.2d 87 (R.I. 2006) ......................................... 11

S. Pac. Land Co. v. United States,

367 F.2d 161 (9th Cir. 1966) ................................ 16

United States v. Carmack,

329 U.S. 230 (1946) ........................................ 16, 24

United States v. Gettysburg Elec. Ry. Co.,

160 U.S. 668 (1896) .............................................. 15

United States v. James Daniel Good Real Prop.,

510 U.S. 43 (1993) ................................................ 20

Vanhorne’s Lessee v. Dorrance,

2 U.S. (2 Dall.) 304 (C.C.D. Pa. 1795) .................. 17
 x

Statutes

28 U.S.C. 1983 .............................................4, 6, 12, 23

28 U.S.C. 1254(1) ....................................................... 1

28 U.S.C. 1441 .......................................................... 12

N.Y. Em. Dom. Proc. Law §§ 201–514..................... 24

Other Authorities

1 Nichols on Eminent Domain § 1.11 (3d. ed. 2024

update) .................................................................. 16

Dick M. Carpenter II & John K. Ross, Institute for

Justice, Victimizing the Vulnerable: The
Demographics of Eminent Domain Abuse (2007)
............................................................................... 18

Information for Town Officials, N.Y. State

Comptroller, https://www.osc.ny.gov/files/local-
government/publications/2020/pdf/information-
for-town-officials.pdf (Jan. 2024) ........................... 5

Ilya Somin, Putting Kelo in Perspective, 48 Conn.

L. Rev. (2016) ........................................................ 15

Jordan Brewington, Note, Dismantling the

Master’s House: Reparations on the American
Plantation, 130 Yale L.J. 2160 (2021) ................. 15
 1

PETITION FOR A WRIT OF CERTIORARI

Petitioners seek a writ of certiorari to review the

judgment of the United States Court of Appeals for
the Second Circuit.

OPINIONS BELOW

The opinion of the court of appeals, App. 1a, is re-

ported at 96 F.4th 209. The district court’s order, App.
57a, is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on March 13, 2024. This petition is timely filed on
June 11, 2024. Petitioners invoke this Court’s juris-
diction under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the Constitution pro-

vides, in relevant part, “nor shall private property be
taken for public use without just compensation.”
INTRODUCTION

Can the government use eminent domain to turn

your property into a park simply because it wants to
drive you out of town? Does the Takings Clause allow
pretextual, bad-faith condemnations?

The Second Circuit said yes to both questions,

holding that the Takings Clause is satisfied if the tak-
ing isn’t done to confer a private benefit. As long as
the seized land becomes a park, the inquiry is over—
 2

even if the sham park was dreamed up on the fly to

inflict harm on law-abiding citizens; even if the park
would never exist were the government not trying to
thwart a property owner’s lawful use of their land.

As Judge Menashi recognized in dissent, five state

supreme courts answered the same questions no, and
four of those said no in factually identical cases in-
volving sham parks. Those high courts held that the
Takings Clause forbids pretextual, bad-faith tak-
ings—even for parks—when the actual purpose is not
a public use, such as, in this case, stopping a family
from opening a hardware store.

That unambiguous split over sham parks includes

the worst kind of split: a federal court of appeals ver-
sus a state supreme court within the same circuit. The
Takings Clause rights of Connecticut citizens now
turn on whether the citizens are in state or federal
court. In square conflict with the Second Circuit, the
Connecticut Supreme Court held, in a case about
sham “playing fields” to block affordable housing, that
“a government actor’s bad faith exercise of the power
of eminent domain is a violation of the takings
clause[.]” New England Estates, LLC v. Town of Bran-
ford, 294 Conn. 817, 854 (2010). The Connecticut
court expressly rejected the Second Circuit’s narrower
interpretation: “[T]here is no merit to the [govern-
ment]’s claim that a violation of the public use re-
quirement is limited to situations in which the gov-
ernment takes private property for a use that is not a
public use.” Ibid. That split is untenable.

And the problem isn’t just the split. The panel’s

reasoning allows the government to nullify an
 3

enumerated right by lying about what it is doing. As

Judge Menashi explained in dissent, the majority “ap-
pears to recognize that preventing a landowner from
lawfully using his own property is not a valid public
purpose.” App. 24a. “That,” he explains, “is why the
court’s decision depends on the Town lying about its
purpose.” Ibid. “If the Town of Southold had—openly
and honestly—explained that the reason it seized the
Brinkmanns’ property was to stop the owners from
using their property in a lawful way, it would not be
possible for the court to say that the taking was for a
‘public amenity.’” Ibid.

Meaningful protection for constitutional rights—

under the First Amendment, the Equal Protection
Clause, the Takings Clause, or another provision—re-
quires courts to examine whether the government
acts with an unconstitutional purpose. Indeed, as
Judge Menashi observed, “[c]ourts frequently exam-
ine the purpose of government action when evaluat-
ing constitutional claims.” Id. at 26a (collecting
cases). And it could not be otherwise. The Constitu-
tion’s guarantees would mean nothing if courts
simply accepted the government’s stated purposes at
face value.

Allowing the Second Circuit’s decision to stand

threatens the Takings Clause’s protections and pro-
vides a roadmap for the subversion of other funda-
mental rights any time government is willing to pay
the price for a sham park. This case offers the Court
an ideal, single-question vehicle to resolve the split
between the Second Circuit and five state supreme
courts on the scope of the Public Use Clause—and en-
sure that Connecticut citizens have the same right to
 4

use Section 1983 to challenge a sham public use re-

gardless of whether they are in state or federal court.
The petition should therefore be granted.

STATEMENT

This case is about a family’s efforts to build a new

hardware store and a town’s abuse of eminent domain
to stop them by seizing their land for a park.

A. Factual Background

Brinkmann’s Hardware is a family-owned busi-

ness on Long Island. App. 76a. Since 1976, the Brink-
manns have run neighborhood hardware stores, a sta-
ple of American main streets for generations. Ibid.
Brinkmann’s Hardware started as a literal mom-and-
pop shop of only 1,200 square feet in Sayville, New
York. Ibid. By 2021, the Brinkmanns’ children were
running the business with that original location and
three other stores on central Long Island. Ibid.

To build a new hardware store, the Brinkmanns

bought long-vacant property in Southold, New York.
App. 77a–78a, 87a. But Respondent Town of
Southold, for reasons that continue to baffle the
Brinkmanns, was determined to stop them.

The Town used every tool at its disposal to drive

the family out of Southold. The Town put the Brink-
manns on a years-long bureaucratic carousel, repeat-
edly demanding revisions to the hardware store plan.
App. 78a–81a. When the Brinkmanns hung on, the
Town ratcheted up the pressure with exorbitant fees,
such as $30,000 for a dubious “market impact study”
 5

that the Town never actually conducted, even after

the Brinkmanns paid for it. App. 82a–83a. Then,
Town officials, first the Town Supervisor 1 and later
the Town Attorney, called the property’s previous
owner and demanded it breach the contract of sale to
the Brinkmanns. App. 86a–87a.

Exasperated by the Brinkmanns’ refusal to go

away, the Town concocted a phony “moratorium” on
building permits and then dished out exceptions to
anyone not named “Brinkmann.” App. 88a, 90a–91a.
The Town twice extended the moratorium in violation
of state law and over the objections of Suffolk County.
App. 89a–90a The Brinkmanns persevered, suing to
end the moratorium. App. 89a. The state trial court
denied the Town’s motion to dismiss. App. 91a.

With the moratorium gambit on the rocks, the

Town suddenly decided that it needed a new park—a
“passive use park,” in fact, one without any improve-
ments. App. 91a–92a. And it needed this park, which
it had never thought about before, right now. And it
needed a park of the exact dimensions of the Brink-
manns’ property. Only the Brinkmanns’ property
would do—the vacant property for sale literally next
door was not even considered. App. 91a. Out of

1Under New York Law, a town supervisor is typically the

presiding officer of the town board and the chief executive officer
of the town. Information for Town Officials, N.Y. State
Comptroller, https://www.osc.ny.gov/files/local-government/
publications/2020/pdf/information-for-town-officials.pdf (Jan.
2024), at 11.
 6

legitimate options for stopping the Brinkmanns, the

Town used eminent domain to take their property.

The Town’s plan for a park was ginned up out of

thin air. The Town made no effort to acquire the prop-
erty or had any plans to use it for a park when the
property had previously been listed for sale in 2011.
App. 77a. During the five years that the property sat
vacant under the prior owner, the Town took no steps
to plan for a park. App. 78a. When the Brinkmanns
contracted to purchase the property, the Town wasn’t
even considering the land for a park. Ibid. During the
three years that the Brinkmanns worked to bring
their hardware store to life—meeting with Town offi-
cials and then revising and submitting plans—no
Town official ever suggested that the Town might
want the property for a park. App. 79a–83a, 87a. Nor
did any Town official mention potential plans for a
park when the Brinkmanns funded a traffic study,
paid a special permit fee, and paid $30,000 for an im-
pact study the town never did. App. 80a, 82a.

That’s because the Town did not have any plans to

use the Brinkmanns’ property for a park, at least not
until it looked like the Brinkmanns might win their
challenge to the Town’s building moratorium. App.
77a, 79a–83a, 85a.

B. Proceedings Below

After the Town started the process to take the

Brinkmanns’ property, the Brinkmanns filed a Sec-
tion 1983 suit in federal court asserting that the tak-
ing violates the Fifth Amendment because a
 7

pretextual, bad-faith taking for a sham park is not a

public use. App. 96a–97a.

The Town filed a 12(b)(6) motion to dismiss, which

the district court granted. App. 57a, 71a. The district
court concluded that the Public Use Clause prohibits
pretextual takings only when the actual purpose is to
bestow a private benefit. App. 62a–64a. Because the
Brinkmanns alleged that the true purpose of the
Town’s sham taking was to stop their otherwise law-
ful business, as opposed to conferring a private bene-
fit, they failed to state a claim. App. 63a–64a.

In a 2-1 decision, the Second Circuit affirmed. App.

2a. The panel unanimously agreed that the Brink-
manns’ “complaint alleges facts sufficient to support
a finding that the decision to create the park was a
pretext for defeating the Brinkmanns’ commercial
use” and that the decision to take the Brinkmanns’
property for a park “was made after varied objections
and regulatory hurdles that the Brinkmanns did or
could surmount.” App. 2a–3a, 23a. But that didn’t
matter.

“The only question is whether the Takings Clause

is violated when a property is taken for a public amen-
ity as a pretext for defeating the owner’s plans for an-
other use.” App. 3a. The Second Circuit held that it is
not: The Public Use Clause is only a “prohibition of
takings for ‘private’ purposes[.]” App. 5a.

Observing that Supreme Court precedent “fore-

closes inquiry into whether a government actor had
bad reasons for doing things,” the court held that a
condemning authority has “a complete defense to a
 8

public-use challenge” if the taking will serve a “well-

established” public use such as “the creation of a pub-
lic, open space.” App. 11a. Because the Brinkmanns
did “not allege that the Town meant to confer any pri-
vate benefit or intends to use the property for any-
thing other than a public park,” the Second Circuit
held that the Brinkmanns had “not pointed to any
Town purpose that violates the Takings Clause.”
App. 8a.

Judge Menashi dissented. App. 23a. Highlighting

how the majority’s decision “creates a split with the
decisions of several state supreme courts,” he ob-
served that “the Constitution contains no Fake Park
Exception to the public use requirement of the Tak-
ings Clause.” App. 24a, 29a. Judge Menashi rejected
the idea that government can take property for “a
public amenity as a pretext for defeating the owner’s
plans for another use.” App. 24a. And he warned that
the majority decision “grants governments virtually
unlimited power over private property—as long as the
governments are willing to act in bad faith.” App. 25a.

Judge Menashi would therefore have held that the

Brinkmanns stated a viable Takings Clause claim: “A
taking of property must be for a public use—or at
least for a public purpose—and thwarting the rightful
owner’s lawful use of his property is not a public pur-
pose.” App. 24a (cleaned up).
 9

REASONS FOR GRANTING THE PETITION

I. The Second Circuit squarely split with

five state supreme courts on the scope of
the Public Use Clause’s protection against
pretextual, bad-faith takings.

A. The Second Circuit split with Con-

necticut, Massachusetts, Pennsylva-
nia, Georgia, and Rhode Island on
whether the Public Use Clause pro-
hibits pretextual, bad-faith takings.

Five state courts of last resort have held that the

Public Use Clause protects property owners from tak-
ings where the stated purpose conceals an illegitimate
actual purpose. Four of those courts rejected pre-
textual, bad-faith takings for a sham park, just like
the one in this case.
1. Connecticut: The supreme court invalidated a
sham-park taking whose actual purpose was to stop
affordable housing. “It is well established * * * that a
government actor’s bad faith exercise of the power of
eminent domain is a violation of the takings clause”
and “there is no merit to the town’s claim that a vio-
lation of the public use requirement is limited to situ-
ations in which the government takes private prop-
erty for a use that is not a public use.” New England
Estates, 294 Conn. at 854.

2. Pennsylvania: The supreme court invalidated

a sham-park taking whose actual purpose was to stop
residential development. “[T]he true purpose must
 10

primarily benefit the public” because “the government

is not free to give mere lip service to its authorized
purpose or to act precipitously and offer retroactive
justification.” Middletown Twp. v. Lands of Stone, 595
Pa. 607, 617 (2007).

3. Massachusetts: The supreme judicial court in-

validated a sham-park taking whose purpose was to
stop affordable housing. Where the town was “con-
cerned only with blocking the plaintiffs’ develop-
ment,” pretext claims are “not limited to action taken
solely to benefit private interests.” Pheasant Ridge
Assocs. Ltd. P’ship v. Town of Burlington, 399 Mass.
771, 776–777 (1987). They also “include[] the use of
the power of eminent domain solely for a reason that
is not proper, although the stated public purpose or
purposes for the taking are plainly valid ones.” Id. at
776.

4. Georgia: The supreme court invalidated a

sham-park taking whose actual purpose was to stop a
waste-disposal facility. The court examined “whether
the action of the county commissioner in condemning
this parcel of land was taken for the purpose of build-
ing a public park or whether this was a mere subter-
fuge utilized in order to veil the real purpose of pre-
venting the construction of a hazardous waste dis-
posal facility.” Earth Mgmt., Inc. v. Heard County,
248 Ga. 442, 446–447 (1981). In striking down the
condemnation, the court acknowledged having “re-
peatedly held” that pretextual takings can take two
forms: (1) “private property may not be taken for a
private purpose”; and (2) “a condemning authority
may not act in bad faith in the exercise of the right of
eminent domain.” Id. at 446.
 11

5. Rhode Island: The supreme court invalidated

the taking of a private garage for the stated purpose
of airport parking when the actual purpose was a de-
sire to increase revenue. “[B]ased on the record devel-
oped,” the court “conclude[d] the principal purpose for
the taking in this case was not a valid public use.” R.I.
Econ. Dev. Corp. v. The Parking Co., L.P., 892 A.2d
87, 103–104 (R.I. 2006). 2

Each of these state court cases—all won by the

property owner in the end—would have failed at the
outset under the decision below. Federal courts in the
Second Circuit must now dismiss Takings Clause
claims and reject Takings Clause defenses asserting
that the government’s stated public use is a pretext
concealing an illegitimate purpose, unless the alleged
illegitimate purpose is a private benefit.

2 The decision below also squarely conflicts with other state-

court decisions that enforce protections against pretextual tak-

ings. A Colorado intermediate appellate court rejected a taking
for the stated purpose of “open space buffer” where the true pur-
pose was to stop development of a grocery store. City of Lafayette
v. Town of Erie Urb. Renewal Auth., 434 P.3d 746, 750–753
(Colo. App. 2018). A New Jersey trial court invalidated a sham
park to stop the expansion of a rehabilitation center. Borough of
Essex Fells v. Kessler Inst. for Rehabilitation, Inc., 673 A.2d 856,
858 (N.J. Super. Ct. Law Div. 1995). On the flip side, a federal
trial court recently dismissed a pretext challenge to a taking for
a park and public works to stop a mobile-home-park expansion.
Garvey Farm LP v. City of Elsmere, No. CV 2:23-015-DCR, 2023
WL 3690229, at *6 (E.D. Ky. May 26, 2023) (relying on Second
Circuit precedent).
 12

B. A Connecticut citizen’s Section 1983

claim against a pretextual, bad-faith
taking depends solely on state versus
federal court.

The split with the Connecticut Supreme Court

warrants special comment because it is the worst kind
of split—federal circuit court versus state supreme
court within the same circuit. The viability of a Sec-
tion 1983 claim now turns on state versus federal
court.

The property owners in New England Estates and

the Brinkmanns here filed Section 1983 actions
claiming that a pretextual taking for a sham park vi-
olated the Public Use Clause. The Connecticut prop-
erty owners did not simply get past a motion to dis-
miss; they prevailed on the merits. 294 Conn. at 853–
854, 861. The Brinkmanns brought the exact same
claim in federal court here but were dismissed for fail-
ing to state a claim.

For Connecticut citizens, the viability of a Section

1983 pretextual takings claim now depends solely on
venue. They can assert pretext as a defense in state
court and win. And they can bring a Section 1983 pre-
text claim in state court and win. But a Section 1983
pretext claim adjudicated originally in federal court
or removed there under 28 U.S.C. 1441 can’t get off
the starting line. That irreconcilable split calls for this
Court’s review.
 13

II. The Second Circuit misread this Court’s

precedent and got the Public Use Clause
wrong.
The Second Circuit narrowly construed the Public
Use Clause as only protecting property owners from
sham takings involving a private benefit, but not
when a sham taking aims at another illegitimate pur-
pose. This holding misunderstands the Clause, and it
is based on misreading a specific passage of Kelo v.
City of New London, 545 U.S. 469 (2005). Here’s the
relevant language:

[T]he [government] would no doubt be forbid-

den from taking petitioners’ land for the pur-
pose of conferring a private benefit on a partic-
ular private party. See [Haw. Hous. Auth. v.]
Midkiff, 467 U.S. [229,] 245 [(1984)] (“A purely
private taking could not withstand the scrutiny
of the public use requirement; it would serve no
legitimate purpose of government and would
thus be void”) * * * Nor would the City be al-
lowed to take property under the mere pretext
of a public purpose, when its actual purpose
was to bestow a private benefit.

545 U.S. at 477–478.

True, Kelo talks about private benefit, but that is

what the case was about—taking Susette Kelo’s home
to give it to private developers. This passage cannot
be over-read to mean that this Court implicitly re-
stricted pretext claims solely to takings involving a
private benefit.
 14

Yet, remarkably, that is just what the Second Cir-

cuit concluded. And it went even further. Without ex-
planation, the Second Circuit concluded that Kelo
overruled, sub silentio, the longstanding federal and
state consensus that the Takings Clause forbids pre-
textual, bad-faith takings, including those that do not
involve a private benefit. App. 19a (“That may have
been so in 1966, but it is not so now. The Supreme
Court’s current pronouncement on ‘pretext’ concerns
only the pretext of non-public (that is, private) use.”)
(emphasis in original).

The Second Circuit got the Public Use Clause

wrong. Reaching the opposite conclusion of the Sec-
ond Circuit, the Connecticut Supreme Court in New
England Estates rejected the government’s argument
(the same one that the Town made below) that Kelo
forbids pretextual, bad-faith takings unless a private
benefit is alleged. 294 Conn. at 854 n.28. To believe
that Kelo implicitly restricted pretextual takings to
facts involving a private benefit would be to “inter-
pret[] that decision overbroadly.” Ibid. To the con-
trary, “there is no merit to the [government]’s claim
that a violation of the public use requirement is lim-
ited to situations in which the government takes pri-
vate property for a use that is not a public use.” Id. at
854.

Judge Menashi thought that Connecticut’s high

court got it right. In Kelo, the “Supreme Court’s men-
tion of private benefits reflected the record before it.
It cannot be read to sweep away the pre-existing body
of federal or state law that other types of pretextual
takings violate the public use requirement.” App. 41a.
“If the alleged illegitimate purpose in Kelo had not
 15

been the bestowal of a private benefit but the obstruc-

tion of the owner’s lawful use, then the trial court and
the Connecticut Supreme Court [in Kelo] would have
considered whether there was evidence of that imper-
missible purpose.” Ibid.

Judge Menashi is correct. Kelo got a lot wrong 3 but

one thing it did not disturb is that, under the Takings
Clause, the public use must be the actual and legiti-
mate purpose of a condemnation. The public must
want and need the public use. The asserted public use
cannot be a smokescreen for a nefarious true purpose.
That is why this Court has repeatedly said that the
government must act in good faith when it condemns
property, and that the government’s objectives must
be legitimate. See Haw. Hous. Auth. v. Midkiff, 467
U.S. 229, 245 (1984) (approving the legislature’s pur-
pose as “a legitimate public purpose” (emphasis
added)); United States v. Gettysburg Elec. Ry. Co., 160
U.S. 668, 681 (1896) (“The end to be attained, by this
proposed use * * * is legitimate, and lies within the

3 Members of this Court and commentators alike have called

for Kelo to be overturned. See, e.g., Eychaner v. City of Chicago,

141 S. Ct. 2422, 2423 (2021) (Thomas, J., joined by Gorsuch, J.,
dissenting in denial of cert.) (“[T]his petition provides us the op-
portunity to correct the mistake the Court made in Kelo.”); Jor-
dan Brewington, Note, Dismantling the Master’s House: Repara-
tions on the American Plantation, 130 Yale L.J. 2160, 2198
(2021) (“Subsequent judicial decisions and scholarly evaluation
support the notion that Kelo effectively removed most constitu-
tional limits on the ‘public use’ requirement of eminent domain
power.” (footnotes omitted)); Ilya Somin, Putting Kelo in Perspec-
tive, 48 Conn. L. Rev. 1551, 1551 (2016) (“Going forward, the best
way to rectify Kelo’s errors is to overrule it completely, rather
than rely on half-measures[.]”).
 16

scope of the constitution.”); see also United States v.

Carmack, 329 U.S. 230, 243 (1946) (suggesting that a
bad-faith, capricious, or arbitrary taking would be set
aside). 4 Review is necessary to correct the Second Cir-
cuit’s misreading of Kelo and the Public Use Clause.

III. Correcting the Second Circuit’s error is

important.
The Second Circuit got the Public Use Clause
wrong in a way that causes further damage to that
provision and sets up sham parks as a surefire way to
suppress lawful activity and other constitutional
rights. What Justice Thomas wrote in dissent in Kelo
could be said of the majority ruling below: “Today’s
decision is simply the latest in a string of our cases
construing the Public Use Clause to be a virtual nul-
lity.” Kelo, 545 U.S. at 506 (Thomas, J., dissenting).
The panel held that a “condemning authority * * * has
‘a complete defense’” to a pretext claim as long as the
taking is for a traditional public use like “creation of
a public, open space[.]” App. 11a (emphasis added). In
the Second Circuit’s view, if the government is willing
to pay for a park it does not genuinely want and lie

Lower courts, too, have long agreed that takings can only
4

be done for a good-faith, legitimate purpose. See, e.g., S. Pac.

Land Co. v. United States, 367 F.2d 161, 162 (9th Cir. 1966) (col-
lecting cases); see also 1 Nichols on Eminent Domain § 1.11 (3d
ed. 2024 update) (“[I]t should be pointed out that from the very
beginning of the exercise of the [eminent-domain] power the con-
cept of the ‘public use’ has been so inextricably related to a
proper exercise of the power that such element must be consid-
ered as essential in any statement of its meaning.”).
 17

about its actual purpose, courts should not care what

that actual purpose is.

A. The government’s true purpose for

taking property matters.

Courts should be as concerned about a malicious,

bad-faith purpose for a taking as they are about such
purposes in the context of other enumerated rights.
Eminent domain is destructive, literally and figura-
tively. It bulldozes buildings and can bulldoze lives.
That is why it has long been called the “despotic
power.” E.g., Vanhorne’s Lessee v. Dorrance, 2 U.S. (2
Dall.) 304, 311 (C.C.D. Pa. 1795) (Patterson, J.). For
the words “public use” to constrain the despotic
power, they must function as a meaningful check on
abuse—a check the Second Circuit rejected.

The exercise of eminent domain can have dramatic

effects that are not remedied by “just compensation”
at fair market value. Discussing abuse of eminent do-
main against minority communities during the era of
“urban renewal,” Justice Thomas observed that “no
compensation is possible for the subjective value of
these lands to the individuals displaced and the indig-
nity inflicted by uprooting them from their homes.”
Kelo, 545 U.S. at 521 (Thomas, J., dissenting). And
both Justice Thomas and Justice O’Connor warned
that the judiciary’s failure to give teeth to the Public
Use Clause results in losses that “fall disproportion-
ately on poor communities” and other vulnerable de-
mographics such as the elderly. Ibid.; see also id. at
 18

505 (O’Connor, J., joined by Rehnquist, C.J., and

Scalia and Thomas, JJ., dissenting). 5

Without the Public Use Clause’s substantive check

on eminent-domain abuse, government can do things
that this Court previously said were off limits, com-
pounding injury to vulnerable groups. Consider two
well-known decisions in which local government
sought to drive out unwanted minorities by using lo-
cal ordinances for a seemingly benign stated purpose
while concealing an illegitimate actual purpose.

First, in City of Cleburne v. Cleburne Living Cen-

ter, the local government denied a permit to “a group
home” for the mentally handicapped for stated rea-
sons such as being on a “five hundred year flood plain”
and “the size of the home.” 473 U.S. 432, 435, 450
(1985). This Court struck down the permit denial un-
der the Equal Protection clause because the stated
purposes were a pretext for an illegitimate purpose—
“an irrational prejudice against the mentally [handi-
capped].” Id. at 450.

Second, in Church of the Lukumi Babalu Aye v.

City of Hialeah, the local government passed an ordi-
nance prohibiting animal cruelty that was “com-
plian[t] with the requirement of facial neutrality” for
the stated pretext of public health. 508 U.S. 520, 534

5 Empirical evidence confirms minorities, the poor, and other

vulnerable groups are inordinately hurt by eminent-domain
abuse. See, e.g., Kelo, 545 U.S. at 522 (Thomas, J., dissenting)
(collecting scholarship); Dick M. Carpenter II & John K. Ross,
Institute for Justice, Victimizing the Vulnerable: The De-
mographics of Eminent Domain Abuse (2007).
 19

(1993). The actual reason was that the “prospect of a

Santeria church in their midst was distressing to
many members of the Hialeah community” and the
anti-cruelty ordinance was intended to prevent San-
taria’s ritual animal sacrifice. Id. at 526. The Court
struck down the ordinance because the “Free Exercise
clause protects against governmental hostility which
is masked as well as overt.” Id. at 534.

The Second Circuit has given cities like Cleburne

and Hialeah a free pass as long as they use eminent
domain for a sham park when they want to harm or
banish unpopular minorities. Under the decision be-
low, if Cleburne had seized the group home for a sham
park, it would be irrelevant that the actual purpose
was driving the mentally handicapped out of town. If
Hialeah had seized the property of Santeria practi-
tioners for a sham park, it would have been irrelevant
that the actual purpose was driving a religious group
out of town. Under the Second Circuit’s unambiguous
holding, those cities using eminent domain to create
sham parks would have a “complete defense” because
“[i]n this area, the Supreme Court wisely forecloses
inquiry into whether a government actor had bad rea-
sons for doing good things.” App. 11a.

Indeed, at oral argument below, the Town “frankly

acknowledged that, under its view of the public use
requirement”—the interpretation now endorsed by
the Second Circuit—the government could seize the
homes of disfavored minorities “out of animus toward
those minorities and a desire to drive them out * * *
as long as the Town said it would build parks where
the minorities’ homes once stood.” App. 55a (citing
Oral Argument Audio Recording at 15:50 to 17:10).
 20

To be sure, the Second Circuit suggested in dicta

that one could challenge improper purposes with
other kinds of constitutional claims. App. 21a
(“[O]ther statutory and constitutional provisions do
allow courts to examine allegedly invidious or dis-
criminatory motivation.” (emphasis in original)).

But the Takings Clause isn’t a second-class citi-

zen. As the Court recently made clear, when an
amendment’s “plain text covers an individual’s con-
duct”—here, the ownership of private property—“the
Constitution presumptively protects that conduct.”
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S.
1, 18 (2022). Property owners shouldn’t have to rely
on other constitutional provisions to challenge bad-
faith takings. Forcing property owners to use other
constitutional provisions to protect themselves from
bad-faith takings would again “relegate[] the Takings
Clause to the status of a poor relation among the pro-
visions of the Bill of Rights.” Knick v. Twp. of Scott,
588 U.S. 180, 189 (2019) (cleaned up).

Yet the Second Circuit’s rely-on-other-constitu-

tional-rights approach nullifies a whole category of
Takings Clause claims simply because other constitu-
tional claims might exist in some situations. That is
not how constitutional claims work. Each claim
stands on its own. “The proper question is not which
Amendment controls but whether either Amendment
is violated.” United States v. James Daniel Good Real
Prop., 510 U.S. 43, 50 (1993).

For example, if the Town were using its eminent-

domain power to take property from a religious group
for the true purpose of stopping a church, synagogue,
 21

or temple from being built, that would not be a “public

use” because the public has no legitimate interest in
violating the Free Exercise rights of religious minori-
ties. So, yes, maybe the Second Circuit is right and
that religious group would also have Free Exercise or
Establishment Clause claims. But the existence of
those claims does not cancel out the Takings Clause
claim or mean that a sham-park taking for the actual
purpose of naked religious discrimination would be a
valid “public use” simply because a park would exist.
To the contrary, when it comes to takings, the Tak-
ings Clause should be the primary protection. Cf.
County of Sacramento v. Lewis, 523 U.S. 833, 843
(1998) (recognizing that multiple constitutional
claims can be brought concerning the same conduct
but the “standard appropriate” to the more “specific
constitutional provision” governs (cleaned up)).

But even assuming courts will hear other kinds of

claims about the actual purpose behind a taking, that
may matter only when the plaintiff can invoke height-
ened scrutiny, such as for an equal-protection claim
alleging discrimination against a suspect class like
race (a strategy, incidentally, that did not seem to
stop racially motivated urban renewal takings). The
holding below still declares open season on everyone
else, including vulnerable non-suspect classes such as
the poor, the elderly, the sick, and the mentally hand-
icapped (as in Cleburne). That’s because under the
Second Circuit’s holding alleged violations of the Pub-
lic Use Clause trigger only rational-basis review—
even though the Clause protects the enumerated
right that private property won’t be taken except for
a legitimate public use. See App. 11a. It surely
 22

surprises no one to read in cases like New England

Estates that the actual purpose of the sham taking
was to fence out the poor by fencing out affordable
housing.

The decision below also declares open season on

hardworking, law-abiding Americans like the Brink-
manns. They want to open a hardware store as part
of their family’s American dream. They want to em-
ploy other hardworking people and provide valuable
goods and services to the community. They bought
property. They complied with all applicable laws—a
formidable obstacle course that took years to run. Yet,
in the end, after doing everything a responsible citi-
zen should do, the Town vindictively took their prop-
erty for a bogus park. That is not a public use. That is
despotism.

The government cannot use its eminent-domain

power to accomplish an illegitimate end like driving
out politically unpopular businesspeople, the disa-
bled, religious minorities, or anyone else who might
fall afoul of the town fathers in a backroom meeting.
The substantive constraint within the phrase “public
use” stops the despotic power from being truly des-
potic, a last resort when someone won’t play ball or a
first resort when the powers that be don’t want some-
one around at all. The state supreme courts that the
Second Circuit is now in conflict with have long un-
derstood what the Public Use Clause actually means.
 23

B. Identifying actual purposes is just as

workable in the takings context as in
other contexts because legitimate tak-
ings have an objective order of opera-
tions.

The Second Circuit rejected inquiry into the actual

purpose of bad-faith takings for sham parks by recit-
ing a laundry list of rationales for judicial inaction:
“federalism,” “separation of powers,” “competence,”
“prudence,” and the notion that looking at objective
evidence of actual purpose invariably results only in
a futile effort to “gauge the purity of motives.” App.
10a. But the majority’s blunt assertions, which are ei-
ther thinly reasoned or not reasoned at all, are con-
tradicted by the majority opinion itself and the whole
of constitutional law.

An inquiry into actual purpose is entirely worka-

ble, something the majority straight-up concedes. The
majority agreed that such an inquiry is proper where
there is a plausible allegation of private benefit.
App. 8a. In other words, if a Section 1983 plaintiff
says, “Here is objective evidence that the town con-
demned my property for a sham park to stop me from
building a hardware store, because the mayor’s
brother owns a hardware store,” the majority below
agreed that courts can inquire into whether the actual
purpose of the park is to benefit the mayor’s brother.
But if a Section 1983 plaintiff says, as the Brink-
manns did, “Here is objective evidence that the town
condemned my property for a sham park, because it
wants to drive me out of town,” the panel below
seemed to think that ascertaining actual purpose is
impossible. That makes no sense.
 24

And identifying the actual purpose of a bad-faith

taking isn’t daunting because legitimate takings have
a long-established order of operations. As demon-
strated by centuries of eminent-domain history, step
one is identifying a public use that the public needs
and wants for its own sake. Step two is identifying
possible locations and evaluating their viability
across economic, environmental, recreational, and
other dimensions. Step three, often required by state
law, is negotiating with the property owner. Step four
is condemnation. 6

Step one for legitimate takings should never be

what happened here—identify a legitimate and legal
use of property that you want to stop (or lawful busi-
nesspeople who you want to drive out of town). And
step two should never be what it was here—hastily
sketch out the design for a bare-bones park on the
back of a metaphorical envelope and then pretend
that you want the park. There is a reason why sham
takings are typically for “passive use park[s],” App.
92a, “open space buffers,” or “playing fields.” This is
the cheapest kind of park, so it is what you do when
you don’t actually want a park.

6 For an illustration of the general process, see United States

v. Carmack, 329 U.S. 230 (1946). Congress (and the Constitu-
tion) had identified the public need, the establishment of post
offices. Id. at 239. Congress then designated certain officials “to
use their best judgment in selecting post office sites” and then
“acquire by condemnation the site[s] thus lawfully selected.” Id.
at 242. See also, e.g., N.Y. Em. Dom. Proc. Law §§ 201–514 (man-
dating the steps for using eminent domain in the state).
 25

Take the cases in which several state supreme

courts rejected pretextual takings under the Takings
Clause. The state high courts in those cases rejected
the bad-faith takings based on objective evidence of
irregularities by public officials, the lack of planning
tied to the asserted public use, and, importantly, the
timing of the decision to use eminent domain—the
same type of evidence that the Brinkmanns allege ex-
ists here.

In New England Estates, for example, the town

board of selectmen started the eminent-domain pro-
cess three weeks after learning the property owners
intended to build affordable housing; the board
then—after starting the process to take the prop-
erty—asked the town engineer to “prepare a ‘sketch’
of the property that depicted playing fields[.]” 294
Conn. at 826. Similarly, in Pheasant Ridge, the town
voted, without following “its usual practices” or con-
sulting the town agencies it “normally” consulted, to
condemn a property after its owner applied for an af-
fordable housing permit (under the state’s “Anti-Snob
Zoning Act”). 399 Mass. at 772–773, 778. Under these
sorts of facts, the sort the Brinkmanns alleged and
will develop on remand, identifying a sham taking is
not difficult.

Indeed, it is typically so obvious that sham takings

are shams that the government must nakedly lie
about what it is doing and, in the Second Circuit, re-
viewing courts must now pretend to believe those ob-
vious lies. As Judge Menashi’s dissent pointed out,
the “majority appears to recognize that preventing a
landowner from lawfully using his own property is not
 26

a valid public purpose.” App. 24a. 7 “That,” he ex-

plains, “is why the court’s decision depends on the
Town lying about its purpose.” Ibid. “If the Town of
Southold had—openly and honestly—explained that
the reason it seized the Brinkmanns’ property was to
stop the owners from using their property in a lawful
way, it would not be possible for the court to say that
the taking was ‘for a public amenity.’” Ibid. In New
England Estates, the town brazenly argued to the
Connecticut Supreme Court that it “did not violate
the public use requirement by being dishonest about
the reasons for which it took the land.” 294 Conn. at
854. It is not hard to identify sham takings.

Furthermore, as Judge Menashi explained, there

is no reason to believe that inquiring into actual pur-
poses is impossible in the eminent-domain context
when it is routine across the spectrum of constitu-
tional claims. App. 26a. He identified religion cases,
speech cases, equal protection cases. Ibid. Using ob-
jective evidence to identify actual purposes is normal.
And it could not be otherwise. Our country would look
very different if judges refused across the board to
look at actual purposes and took the government’s

7 Implicit in the Second Circuit’s decision is the notion that,

because the Town has a general police power to enact and en-
force zoning ordinances of general applicability (all of which the
Brinkmanns satisfied), the Town can also use eminent domain
as a tool of last resort for eliminating legal but unwanted uses
like hardware stores. That assumption is wrong. Historically
and doctrinally, the “question whether the State can take prop-
erty using the power of eminent domain is * * * distinct from the
question whether it can regulate property pursuant to the police
power.” Kelo v. City of New London, 545 U.S. 469, 519 (2005)
(Thomas, J., dissenting).
 27

asserted purpose at face value when laws impact race,

political opinion, religious worship, firearms owner-
ship, access to counsel, or the right to direct the up-
bringing of one’s own children. There is no reason to
believe, and the Second Circuit certainly did not sup-
ply one, that what is ordinary in every other context
is unworkable for bad-faith takings.

IV. This case offers a clean, single-question

vehicle.
This case is an ideal vehicle to resolve the narrow
question presented—and only the question presented.

The case comes to the Court following a dismissal

on a Rule 12(b)(6) motion for failure to state a claim.
The panel below, both majority and the dissent,
agreed that “[t]he complaint alleges facts sufficient to
support a finding that the decision to create the park
was a pretext for defeating the Brinkmanns’ commer-
cial use[.]” App. 3a, 23a. The “only question is whether
the Takings Clause is violated when a property is
taken for a public amenity as a pretext for defeating
the owner’s plans for another use.” App. 3a (emphasis
added).

That means there is no dispute that Petitioners

stated a viable claim if the claim exists. This case thus
offers the Court a distraction-free opportunity to ad-
dress the purely legal question about the scope of pre-
textual takings prohibited by the Takings Clause. The
petition should therefore be granted.

CONCLUSION
The petition for certiorari should be granted.
 28

Respectfully submitted,

JEFFREY T. ROWES JEFFREY REDFERN

ARIF PANJU Counsel of Record
CHRISTEN MASON HEBERT WILLIAM ARONIN
INSTITUTE FOR JUSTICE INSTITUTE FOR JUSTICE
816 Congress Avenue 901 N. Glebe Road
Suite 970 Suite 900
Austin, TX 78701 Arlington, VA 22203
(512) 480-5936 (703) 682-9320
[email protected] [email protected]
[email protected] [email protected]
[email protected]

Counsel for Petitioners

JUNE 11, 2024
APPENDIX
 TABLE OF APPENDICES

Page

APPENDIX A — Order and Dissenting Opinion

of the Second Circuit (Mar. 13,
2024) ............................................. 1a

APPENDIX B — Order of the United States

District Court for the Eastern
District of New York (Sept. 30,
2022) ........................................... 57a

APPENDIX C — Complaint for Declaratory

and Injunctive Relief (May 4,
2021) ........................................... 72a
 1a
Appendix A
22-2722
Brinkmann v. Town of Southold, New York

IN THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2022

Argued: May 3, 2023
Decided: March 13, 2024

No. 22-2722

BEN BRINKMANN, HANK BRINKMANN, MATTITUCK

12500 LLC.,

Plaintiffs-Appellants,

v.

TOWN OF SOUTHOLD, NEW YORK,

Defendant-Appellee.

Before: KEARSE, JACOBS, and MENASHI, Circuit

Judges.

Plaintiffs appeal from the judgment of the United

States District Court for the Eastern District of New
York (DeArcy Hall, J.), which dismissed their
 2a
Appendix A
complaint alleging that the taking of their land for a
public park was a pretextual and bad faith exercise of
the Takings Clause of the Fifth Amendment and
therefore unconstitutional, because the real motive
was to prevent construction of the Plaintiffs’ hard-
ware store.

For the reasons below, we AFFIRM. Judge

Menashi dissents in a separate opinion.

JEFFREY REDFERN (William Aronin, In-

stitute for Justice, Arlington, VA; Arif
Panju, Christen Mason Hebert, Institute
for Justice, Austin, TX, on the brief), for
Plaintiffs-Appellants.

BRIANNA WALSH (James M. Catterson,

Danielle Stefanucci, Pillsbury Winthrop
Shaw Pittman LLP, New York, NY, on
the brief), for Defendant-Appellee.

DENNIS JACOBS, Circuit Judge:

The Defendant Town of Southold (“Southold” or

the “Town”) authorized the creation of a park on a par-
cel to be taken by eminent domain from Ben and
Hank Brinkmann, who planned to build there a big-
box hardware store with an 80-car parking lot. The
complaint alleges facts sufficient to support a finding
that the decision to create the park was a pretext for
defeating the Brinkmanns’ commercial use, and was
made after varied objections and regulatory hurdles
 3a
Appendix A
that the Town interposed and that the Brinkmanns
did or could surmount.

The Brinkmanns and their company Mattituck

12500 LLC (collectively, “Plaintiffs”) appeal from a
judgment of the United States District Court for the
Eastern District of New York (DeArcy Hall, J.) dis-
missing the complaint under Fed. R. Civ. P. 12(b)(6).
The only question is whether the Takings Clause is
violated when a property is taken for a public amenity
as a pretext for defeating the owner’s plans for an-
other use.

On appeal, Plaintiffs argue that the exercise of em-

inent domain violates the Takings Clause if that pub-
lic use, though real, is pretextual. We conclude that
when the taking is for a public purpose, courts do not
inquire into alleged pretexts and motives. Since a
park is a public amenity that serves a public purpose,
we affirm.

Ben and Hank Brinkmann own a chain of hard-

ware stores on Long Island. In 2016, they contracted
to buy (through plaintiff Mattituck 12500 LLC) a par-
cel of land on which to expand that chain in a com-
mercial hub of Southold, New York. In response to ob-
jections by some residents “about the impact that the
proposed store would have on traffic at the intersec-
tion,” J.A. at 77 (Compl. ¶ 39), the Brinkmanns
funded a traffic study which found that the store
would not cause traffic problems, and agreed to pay
for improvements to the intersection that the Town
 4a
Appendix A
deemed necessary. The Town next demanded that the
Brinkmanns fund a “Market and Municipal Impact
Study,” and apply for special permits. When the
Brinkmanns undertook to comply, Southold unsuc-
cessfully attempted to purchase the site before the
Plaintiffs closed.

After closing, Southold imposed a six-month mor-

atorium on building permits in a one-mile area cen-
tered on Plaintiffs’ property and twice extended the
moratorium despite the county government’s finding
that the moratorium lacked supportive evidence. In
July 2020, Southold convened a public hearing to con-
sider whether a park on the parcel would constitute a
public use. Formal findings to that effect were made
in September 2020, and acquisition was authorized
for a “passive use park.”

Plaintiffs brought a § 1983 challenge alleging a

pretextual taking in violation of the Takings Clause
of the Fifth Amendment. The district court denied the
Plaintiffs’ motion for a preliminary injunction and
granted Southold’s motion to dismiss.

Plaintiffs now appeal.

II

We review de novo a district court’s grant of a mo-

tion to dismiss, “constru[ing] the complaint liberally,
accepting all factual allegations in the complaint as
true, and drawing all reasonable inferences in the
plaintiff’s favor.” Palin v. New York Times Co., 940
F.3d 804, 809 (2d Cir. 2019) (quoting Elias v. Rolling
 5a
Appendix A
Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017)).

III

The Fifth Amendment provides that “private prop-

erty [shall not] be taken for public use, without just
compensation.” U.S. CONST., amend. V. There are
only “two limitations on the sovereign’s right to exer-
cise eminent domain: the property taken must be for
public use, and the owner must receive just compen-
sation.” Brody v. Vill. of Port Chester, 434 F.3d 121,
127 (2d Cir. 2005). The Plaintiffs, without contesting
that a public park is a public use, allege that Southold
is using the park as a cover for its true motive, which
is to thwart the Brinkmanns’ plan for a hardware
store. According to Plaintiffs, under Kelo v. City of
New London, 545 U.S. 469 (2005), “the Public Use
Clause requires the government’s stated objective to
be genuine, and not a pretext for some other, illegiti-
mate purpose.” Appellants’ Br. at 19.

But Kelo cannot support that reading; the Takings

Clause is not an overarching prohibition against any
and all purposes alleged to be “illegitimate.” As we
have previously observed, the Kelo opinion includes
only “a passing reference to ‘pretect’ . . . in a single
sentence.” Goldstein v. Pataki, 516 F.3d 50, 61 (2d Cir.
2008). And the context of that sentence is a passage of
Kelo describing the Takings Clause’s parameters and
its prohibition of takings for “private” purposes:

Two polar propositions are perfectly

clear. On the one hand, it has long been
accepted that the sovereign may not take
 6a
Appendix A
the property of A for the sole purpose of
transferring it to another private party
B, even though A is paid just compensa-
tion. On the other hand, it is equally
clear that a [government] may transfer
property from one private party to an-
other if future “use by the public” is the
purpose of the taking . . . .

As for the first proposition, the [govern-

ment] would no doubt be forbidden from
taking petitioners’ land for the purpose
of conferring a private benefit on a par-
ticular private party. See [Hawaii Hous.
Auth. v.] Midkiff, 467 U.S. [229,] 245
[(1984)] (“[a] purely private taking could
not withstand the scrutiny of the public
use requirement; it would serve no legit-
imate purpose of government and would
thus be void”) . . . . Nor would the [gov-
ernment] be allowed to take property un-
der the mere pretext of a public purpose,
when its actual purpose was to bestow a
private benefit.

Kelo, 545 U.S. at 477–78 (internal citation and foot-

note omitted).

“Subject to specific constitutional limitations,

when the legislature has” decided that something is a
public use, “the public interest has been declared in
terms well-nigh conclusive.” Berman v. Parker, 348
U.S. 26, 32 (1954). Accordingly:
 7a
Appendix A
In such cases the legislature, not the judi-
ciary, is the main guardian of the public
needs to be served by social legislation,
whether it be Congress legislating con-
cerning the District of Columbia . . . or
the States legislating concerning local af-
fairs. . . . This principle admits of no ex-
ception merely because the power of em-
inent domain is involved. . . .”

Midkiff, 467 U.S. at 239–40 (quoting Berman, 348

U.S. at 32). Midkiff goes on to say:

There is, of course, a role for courts to

play in reviewing a legislature’s judg-
ment of what constitutes a public use
. . . . But the Court in Berman made clear
that it is “an extremely narrow” one.
[348 U.S.] at 32. The Court in Berman
cited with approval the Court’s decision
in Old Dominion Co. v. United States,
269 U.S. 55, 66 (1925), which held that
deference to the legislature’s “public use”
determination is required “until it is
shown to involve an impossibility.” . . . .
[T]he Court has made clear that it will
not substitute its judgment for a legisla-
ture’s judgment as to what constitutes a
public use “unless the use be palpably
without reasonable foundation.” United
States v. Gettysburg Electric R. Co., 160
U.S. 668, 680 (1896).

. . . . [W]here the exercise of the eminent

 8a
Appendix A
domain power is rationally related to a
conceivable public purpose, the Court
has never held a compensated taking to
be proscribed by the Public Use Clause.

Midkiff, 467 U.S. at 240–41.

There can be no dispute that a public park, even

an unimproved one, is a public use. Public parks have
been recognized as a “public use” for more than a cen-
tury. See, e.g., Shoemaker v. United States, 147 U.S.
282, 297, 13 S. Ct. 361, 390 (1893) (“The validity of the
legislative acts erecting [public] parks, and providing
for their cost, has been uniformly upheld.”); Rindge
Co. v. Los Angeles Cnty., 262 U.S. 700, 707–08 (1923)
(“condemnation of lands for public parks is now uni-
versally recognized as a taking for public use”).

While in some cases there may be plausible allega-

tions that the exercise of eminent domain supposedly
for a park had been pretext for an intention to use
taken property for a different--and private--purpose,
Plaintiffs’ complaint does not allege that the Town
meant to confer any such private benefit or intends to
use the property for anything other than a public
park. To the contrary, the complaint quotes the
Town’s Supervisor as stating, “I will never allow any-
thing to be built on that property.” J.A. at 24 (Compl.
¶ 75). Plaintiffs have not pointed to any Town purpose
that violates the Takings Clause.

This Court’s holding in Goldstein confirms that un-

derstanding. Goldstein involved a post-Kelo challenge
to takings made to build a basketball stadium and
 9a
Appendix A
several high-rise apartment buildings in Downtown
Brooklyn. Goldstein, 516 F.3d at 53. Plaintiffs’ conten-
tion was “that the project’s public benefits are serving
as a ‘pretext’ that masks its actual raison d’être: en-
riching the private individual who proposed it and
stands to profit most from its completion,” id. at 52–
53--and that “all of the ‘public uses’ the defendants
have advanced for the Project are pretexts for a pri-
vate taking that violates the Fifth Amendment,” id. at
54. Rejecting that argument, this Court held 1) that
the resulting economic development of Brooklyn was
a public benefit, and 2) that “review of a legislature’s
public-use determination is limited such that where
the exercise of the eminent domain power is rationally
related to a conceivable public purpose, . . . the com-
pensated taking of private property . . . is not pro-
scribed by the Constitution.” Id. at 58–59 (internal
quotation marks omitted).

As Goldstein demonstrated, a pretext-based chal-

lenge to a taking has a “dubious jurisprudential pedi-
gree.” Goldstein, 516 F.3d at 62. Assessing the same
lone sentence from Kelo on which the Brinkmanns at-
tempt to build their hardware store, this Court “re-
ject[ed] the notion that in a single sentence, the Kelo
majority sought sub silentio to overrule Berman, Mid-
kiff, and over a century of precedent[.]” Id. “We do not
read Kelo’s reference to ‘pretext’ as demanding, as the
appellants would apparently have it, a full judicial in-
quiry into the subjective motivation of every official
who supported the Project, an exercise as fraught
with conceptual and practical difficulties as with
 10a
Appendix A
state-sovereignty and separation-of-power concerns.”
Id. at 63.

Thus it is demonstrated that judicial deference is

justified by federalism, Kelo, 545 U.S. at 482 (“Our
earliest cases [on the Public Use Clause] in particular
embodied a strong theme of federalism[.]”); by separa-
tion of powers, Berman, 348 U.S. at 32 (“[T]he legisla-
ture, not the judiciary, is the main guardian of the
public needs to be served by social legislation[.]”); by
competence, Midkiff, 467 U.S. at 244 (“[L]egislatures
are better able to assess what public purposes should
be advanced by an exercise of the taking power.”); and
by prudence, Kelo, 545 U.S. at 499 (O’Connor, J., dis-
senting) (it would be “unworkable” for courts to “de-
cid[e] . . . what is and is not a governmental function”
(quoting Midkiff, 467 U.S. at 240–41)).

A “pretext” limitation that invalidates a taking for

a public park would undo this “longstanding policy of
deference to legislative judgments in this field,” id. at
478, 480, by inviting courts “in all cases to give close
scrutiny to the mechanics of a taking rationally re-
lated to a classic public use as a means to gauge the
purity of the motives of the various government offi-
cials who approved it,” Goldstein, 516 F.3d at 62. Such
motives are by nature fragmented--and rarely, if ever,
pure. Different legislators may vote for a single meas-
ure with different goals. See, e.g., Edwards v.
Aguillard, 482 U.S. 578, 636–37 (1987) (Scalia, J., dis-
senting) (“[W]hile it is possible to discern the objective
‘purpose’ of a statute . . . discerning the subjective mo-
tivation of [a legislative body] is, to be honest, almost
 11a
Appendix A
always an impossible task. The number of possible
motivations, to begin with, is not binary, or indeed
even finite.”). So members of a town council who are
hostile or indifferent to a hardware store or other com-
mercial use may vote for a park (in whole or part) be-
cause they favor open space (there or elsewhere) for
reasons of aesthetics, and for playgrounds, athletics,
fresh air, dog-runs, and whatnot.

In this area, Supreme Court precedent wisely fore-

closes inquiry into whether a government actor had
bad reasons for doing good things. A condemning au-
thority, therefore, has “a complete defense to a public-
use challenge” if, “viewed objectively, the Project
bears at least a rational relationship to . . . well-estab-
lished categories of public uses, among them . . . the
creation of a public, open space[.]” Goldstein, 516 F.3d
at 58–59.

IV

Plaintiffs point to a series of state and federal

court decisions which purportedly endorse a general-
ized “pretext” limitation on the Takings power. They
are undaunted by the fact that this limitation has
never presented itself as the dispositive issue in ei-
ther this Circuit or before the Supreme Court. The
cases which supposedly suggest otherwise are uni-
formly inapposite: they are nearly all decided on the
principle that has been articulated in some state
courts--but is unknown to federal takings law--that
instrumentalities of the states lack the power to act
(variously) “in bad faith,” or “arbitrarily and capri-
ciously.”
 12a
Appendix A
For example, in United States, Department of In-
terior v. 16.03 Acres of Land, More or Less, Located
in Rutland County, Vermont, 26 F.3d 349 (2d Cir.
1994) (“Rutland County”), while we began by noting
that “condemnation decisions by governmental enti-
ties to which Congress has delegated eminent domain
authority are subject to judicial review,” we explained
that an inquiry at the outset is needed as to whether
officials authorized to effect a taking for a public pur-
pose have “acted outside the scope of their taking au-
thority,” id. at 355. Rather than suggesting that there
is a generalized pretext limitation on takings, we em-
phasized that “a reviewing court may only set aside a
takings decision as being arbitrary, capricious, or un-
dertaken in bad faith in those instances where the
court finds the [official’s] conduct so egregious that the
taking at issue can serve no public use.” Id. at 356 (em-
phasis added). We thus applied the principle enunci-
ated in Berman that the narrow role of the judiciary
in a Takings Clause case is to determine whether the
purpose was a “public use.”

Plaintiffs also rely on a New Jersey rule that for-

bids takings “motivated by fraud, bad faith, or other
manifest abuse of [a municipality’s] accorded power of
eminent domain.” E. Windsor Mun. Utilities Auth. v.
Shapiro, 270 A.2d 410, 411 (N.J. 1970). But that rule
is actually derived from a state law doctrine which
provides that “[s]o long as [a municipal] corporation
operates within the orbit of its statutory authority, it
is well established that the courts will not interfere
with the manner in which it exercises its power in the
absence of bad faith, fraud, corruption, manifest
 13a
Appendix A
oppression or palpable abuse of discretion[.]” City of
Newark v. New Jersey Tpk. Auth., 81 A.2d 705, 707
(N.J. 1951). In other words, the kind of bad faith tak-
ing discussed in the New Jersey cases relied upon by
the Plaintiffs are void ab initio acts that are beyond
the municipality’s statutory authority. Those cases do
not concern the Fifth Amendment’s Takings Clause.
For example, in Borough of Essex Fells v. Kessler In-
stitute for Rehabilitation, Inc.,673 A.2d 856 (N.J. Su-
per. Ct. Law Div. 1995), the court included a citation
to that clause of the federal Constitution along with
its citation to the New Jersey Constitution, see id. at
860; but it cited no federal cases, and it referred only
to having researched New Jersey and other state law
cases, see id. at 861. As the court found, there were as
of 1995 “no reported New Jersey decisions upholding
a bad faith challenge to a public body’s authority to
condemn[.]” Id.

Further, the decision in Essex Fells did not repre-

sent application of a generalized prohibition of pre-
text. Rather, the court concluded that the plaintiff
Borough had failed to show that its taking was for a
public use. Although the Borough stated, in accord-
ance with New Jersey’s Eminent Domain Law, that
“this property is needed for public use[,] specifically
park land and recreational use,” id. at 860 (internal
quotation marks omitted), the court found that the
Borough in fact “had not determined that it should
proceed to condemn Kessler’s land for any authorized
public purpose,” id. at 862 (emphasis added). There
was ample basis in the record for this finding, includ-
ing evidence that when the property had been part of
 14a
Appendix A
an approximately 15-acre parcel owned by a college
and offered to the Borough, the Borough had opted to
purchase only 2.53 acres, “stat[ing] that the
[B]orough’s need for any additional recreational space
was [thereby] fully met”; that the Borough believed
that it would “have some control over who purchased
the balance of the subject property”; that the Borough
had a “gentlemen’s agreement” with the college to
“sell the balance of the property ‘to the right people’”;
and that the “Borough officials were actively soliciting
residential developers to acquire” “the balance of the
property” “for development of single family resi-
dences”; according to the mayor, the Borough “had
never wanted anything but single family housing at
this site.” Id. at 858, 861–62 (internal quotation
marks omitted). This is the polar opposite of the
acknowledgement in the Plaintiffs’ complaint that
Southold’s Town Supervisor said he would “never al-
low anything to be built on th[e subject] property.”
J.A. at 24 (Compl. ¶ 75).

Rhode Island and Georgia likewise derive their

prohibition on “bad faith” takings from similar doc-
trines of state law. (These cases are disposed of in the
margin.1)

1 Rhode Island: Rhode Island Economic Development Corp. v.

The Parking Co., L.P., 892 A.2d 87 (R.I. 2006), speaks to whether
a state “agency has exceeded its delegated authority by an arbi-
trary, capricious, or bad faith taking of private property,” id. at
103 (internal quotation marks omitted) (citing Capital Proper-
ties, Inc. v. State, 749 A.2d 1069, 1086 (R.I. 1999) (“[A] showing
that a [state] agency has exceeded its delegated authority by an
 15a
Appendix A

arbitrary, capricious or bad faith taking of private property is a

matter properly cognizable by the judicial branch.”)). True, the
court goes on to say that “substantive due process” is in play
“even when the [taking] is made through procedures that are in
themselves constitutionally adequate.’” Id. at 104 (quoting Bru-
nelle v. Town of South Kingstown, 700 A.2d 1075, 1084 (R.I.
1997)). But the case it cites for that proposition, Brunelle, itself
relies on a hodgepodge of federal case law, most notably a Ninth
Circuit case, Sinaloa Lake Owners Ass’n v. City of Simi Valley,
882 F.2d 1398 (9th Cir. 1989), which took an exceedingly broad
view of substantive due process generally, holding that it prohib-
its “arbitrary and capricious government action” in any context,
id. at 1407, but which had been overruled by Armendariz v. Pen-
man, 75 F.3d 1311, 1325-26 (9th Cir. 1996) (en banc)--a case that
itself was later “undermined” in part, Crown Point Development,
Inc. v. City of Sun Valley, 506 F.3d 851, 852–53 (9th Cir. 2007),
by Supreme Court decisions, see id. at 854–56. See also Shannon
v. Jones, 812 F. App’x 501, 503 (9th Cir. 2020) (describing Ar-
mendariz as “overruled in part . . . as recognized in Crown Point
Dev[elopement]”). All this is to say that the Rhode Island case
law is muddled both by state law on state agencies’ authority to
use the eminent domain power and by a reliance on vague and
overbroad out-of-circuit authorities on substantive due process.
Georgia: Earth Management, Inc. v. Heard County, 283 S.E.2d
455 (Ga. 1981), invokes a bar on “bad faith” exercises of the em-
inent domain power in the context of municipalities’ statutory
inability to take any action in bad faith. Earth Management cites
“[t]he most recent pronouncement of this court on the issue of
bad faith,” id. at 460, in City of Atlanta v. First National Bank
of Atlanta, 271 S.E.2d 821 (Ga. 1980), a case which itself bases
its holding on the premise that “[a] court should not interfere
with an exercise of the discretion of a condemning authority de-
termining the necessity of taking land for public purposes and
selecting the location and amount of land reasonably necessary
unless the condemning authority abused its discretion or ex-
ceeded its authority,” id. at 822. For that proposition, City of At-
lanta relies on authority from a 1908 holding that actions under-
taken by municipal corporations “should not be interfered with
 16a
Appendix A
Other state cases relied on by the Plaintiffs invoke
a rule against pretext without distinguishing between
the Takings Clause of the Fifth Amendment and the
state statutory analog. This conflation invites the
misreading of the federal Takings Clause. For exam-
ple, Plaintiffs cite Middletown Township v. Lands of
Stone, 939 A.2d 331 (Pa. 2007), which offers dicta on
the federal Takings Clause, but ultimately rests its
decision on the far narrower ground that the township
at issue was “authorized by statute to exercise emi-
nent domain only for a single public purpose, that of
recreation.” Id. at 337. Thus, the court was obviously
empowered to search the “true” purpose of the alleged
taking because “[r]ecreational use must be the true
purpose behind the taking or else the Township
simply did not have the authority to act, and the tak-
ing was void ab initio.” Id. at 337–38. Plaintiffs’ cited
Colorado case, City of Lafayette v. Town of Erie Ur-
ban Renewal Authority, 434 P.3d 746 (Colo. App.
2018), also has nothing to do with the Takings Clause:
it interprets a Colorado statute granting the power of
eminent domain to a condemning authority. That
statute requires “the condemning entity to demon-
strate, by a preponderance of the evidence, that the
taking of private property is for a public use.” Id. at

or controlled by the courts, unless made in bad faith, or capri-

ciously or wantonly injurious, or in some respect beyond the priv-
ilege conferred by statute or its charter.” Piedmont Cotton Mills
v. Georgia, Ry. & Elec. Co., 62 S.E. 52, 54 (Ga. 1908). The second
Georgia case cited by Plaintiffs, Carroll County v. City of Bre-
men, 347 S.E.2d 598 (Ga. 1986), merely follows on from Earth
Management. Under these cases, any issue as to bad faith was
simply part of the inquiry into whether the taking was within
the scope of statutory authority.
 17a
Appendix A
751 (quoting COLO. REV. STAT. ANN. § 38-1-101(2)(b)).
At the risk of being obvious, where state takings are
subject to statutes that prescribe uses and evidentiary
standards, the courts have a role to play. But the
scope of power to review comes from the standards set
in the relevant statutes, not from the Takings Clause.

Finally, Plaintiffs rely on a single New York State

trial court decision that was never appealed. In In re
Hewlett Bay Park, 265 N.Y.S.2d 1006 (N.Y. Sup. Ct.
1966), the court rejected a pretextual taking and held
that “when dealing with a legislative determination to
condemn, it becomes especially important to scruti-
nize the purpose, for a proper purpose is the very es-
sence of the right to condemn,” id. at 1010. However,
Hewlett Bay Park relied for that holding in part on
Cuglar v. Power Authority of the State of New York,
163 N.Y.S.2d 902 (N.Y. Sup. Ct. 1957), which recog-
nized the well-established principle that “appropria-
tion of lands for public use is a legislative function,
and the instrumentality in which it reposes such pow-
ers is the sole judge of the necessity, in lieu of any pro-
vision to the contrary,”2 id. at 921.

2 Though the court in Cuglar acknowledges a single precedent to

the contrary--Application of Port of New York Authority, 118
N.Y.S.2d 10 (N.Y. Sup. Ct. 1952)--application of that decision--
like the majority of the state court cases Plaintiffs rely on--is
based on state statutory grants of eminent domain powers to con-
demning authorities (in this case, the Port Authority) which in
turn place limits on the condemning authority’s ability to under-
take “palpably unreasonable” condemnations, id. at 10–11 (cit-
ing, inter alia, Section 15, chapter 47, Laws of 1931, McK.
 18a
Appendix A
While federal courts--in dicta--have occasionally
stated as a broad principle that takings will be upheld
“in the absence of bad faith,” see, e.g., United States
v. 58.16 Acres of Land, More or Less In Clinton Cnty.,
State of Ill., 478 F.2d 1055, 1058 (7th Cir. 1973) (quot-
ing United States v. Meyer, 113 F.2d 387, 392 (7th Cir.
1940)), no such “bad faith” rule has ever proved dis-
positive.3 For example, the Seventh Circuit in 58.16
Acres of Land noted that it had “cited [cases] which
hold that the courts are empowered to determine if
the taking of private property is for a public use,” and
it issued a narrow ruling that, because “questions of
bad faith, arbitrariness, and capriciousness, all bear-
ing upon the determination of public use, ha[d] been
raised by [landowners], the district court was re-
quired to resolve those questions,” id. at 1059 (empha-
sis added). It did not announce a “bad faith” or “pre-
text” limitation on the power of eminent domain. Nei-
ther did the Ninth Circuit’s decision in Southern Pa-
cific Land Co. v. United States, 367 F.2d 161 (9th Cir.
1966), which merely stated in dicta that “the Supreme
Court itself has declined to rule out the possibility of
judicial review where the administrative decision to

Unconsol. Laws, § 6485, Bridge and Tunnel Unification Act).

3 The allusion to such a “bad faith” limitation appears to be
purely aspirational. Most such references derive from Shoe-
maker. There, the Supreme Court cited approvingly to an older
case which noted in dicta that “[i]t is to be assumed that the
United States is incapable of bad faith” and that “the citizen may
well confide in the ultimate justice of his government[]--the most
generous, as it is the happiest and most powerful, on the earth.”
Shoemaker, 13 S. Ct.at 375 (emphasis added) (quoting Great
Falls Manuf’g Co. v. Attorney General, 124 U.S. 581, 599 (1888)).
 19a
Appendix A
condemn a particular property or property interest is
alleged to be arbitrary, capricious, or in bad faith,” id.
at 162 (discussing United States v. Carmack, 329 U.S.
230, 243–44 (1946)). That may have been so in 1966,
but it is not so now. The Supreme Court’s current pro-
nouncement on “pretext” concerns only the pretext of
non-public (that is, private) use. Kelo, 545 U.S. at 478.
So long as the actual purpose for which the eminent
domain power is exercised is a public one, there is no
violation of the Takings Clause.

Of course, courts may intercede if an exercise of

eminent domain runs afoul of some other constitu-
tional or statutory provision which does permit an ex-
amination of motives, such as Title VII of the Civil
Rights Act or the Equal Protection Clause. States--as
well as Congress--are also free to place additional lim-
itations on the power of their instrumentalities to ex-
ercise the power of eminent domain. And they may in-
vite the courts to help police those limitations. But the
Takings Clause itself includes no such limitations.

We have considered Plaintiffs’ remaining argu-

ments and find them to be unavailing.

* * *

The dissent endeavors to avoid or cloud our hold-

ing that a taking is permitted by the Takings Clause
if the taking is for a public purpose--as a public park
indisputably is. In so doing, the dissent commits two
errors.
 20a
Appendix A
First, the dissent repeatedly conflates [i] the pur-
pose for which the property was taken and is to be
used--a public park--with [ii] the motivation for tak-
ing it. See, e.g., Dissent at 2 (“. . . preventing an owner
from lawfully using his own property is not a valid
public purpose.”). Thus the dissent treats the Takings
Clause as an overarching prohibition against ulterior
motives. See id. at 26. Such a doctrine would allow lit-
igation to long delay and ultimately stifle the making
of public infrastructure.

The dissent relies on an entirely off-point case,

concerning the ripeness and validity (or not) of a reg-
ulatory taking claim, in which no compensation is
paid. Sherman v. Town of Chester, 752 F.3d 554, 561–
65 (2d Cir. 2014); see Dissent at 5. It, therefore, mat-
tered a lot whether the town had “suffocat[ed] [plain-
tiff] with red tape to make sure he could never succeed
in developing” his property without the town ever ex-
ercising the eminent domain power or paying just
compensation. Sherman, 752 F.3d at 565. At the risk
of being obvious, different factors may come into play
if a taking is attempted without compensation. So,
nothing in Sherman undermines the well-settled
proposition that “where the exercise of the eminent do-
main power is rationally related to a conceivable pub-
lic purpose,” as it undeniably was in this case, “the
Court has never held a compensated taking to be pro-
scribed by the Public Use Clause.” Midkiff, 467 U.S.
at 241 (emphases added). The “longstanding distinc-
tion between acquisitions of property for public use,
on the one hand, and regulations prohibiting private
uses, on the other, makes it inappropriate to treat
 21a
Appendix A
cases involving physical takings as controlling prece-
dents for the evaluation of a claim that there has been
a ‘regulatory taking,’ and vice versa.” Tahoe-Sierra
Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535
U.S. 302, 323 (2002) (emphasis added) (footnote omit-
ted).

As our opinion observes, other statutory and con-

stitutional provisions do allow courts to examine al-
legedly invidious or discriminatory motivation. Op. at
21; Berman, 348 U.S. at 32 (“Subject to specific consti-
tutional limitations, when the legislature has” de-
cided that something is a public use, “the public inter-
est has been declared in terms well-nigh conclusive.”
(emphasis added) (quoted in Op. at 6–7)). Nothing in
this opinion inhibits the enforcement of laws that pro-
hibit invidious discrimination based on race or reli-
gion, or allows a taking to achieve such discrimina-
tion. But courts do not need to search the motives of
public officials who prefer a public park to an eyesore
in the form of a large hardware store with the pro-
spect of 80 vehicles at a time parked and circling.

Second, the dissent attempts to cloud the issue of

public purpose by positing that other motives for cre-
ating the park render the park itself a “Fake Park.”
Dissent at 2. The dissent dilates on this point else-
where by calling the 1.7-acre passive-use park an
“empty field.” Id. at 1. This evasion betrays an urban-
ite prejudice that a park must contain a tennis court
or a statue or a merry-go-round. And that evasion is
needed to promote the central error of the dissent,
that the jostle of motives common to all legislation has
 22a
Appendix A
not produced a public amenity. The evasion is critical
to the dissent because it is the public amenity that
constitutes the public use for which the government
can pay due compensation for private property.

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. The author of the dissent may come to 12500
Main Road, Mattituck, NY, and he may walk the park,
breathe its air, or spread his picnic upon it. There is
nothing Fake about it.

The judgment of the District Court is AF-

FIRMED.
 23a
Appendix A
22-2722
Brinkmann v. Town of Southold

MENASHI, Circuit Judge, dissenting:

The court emphasizes that “[p]ublic parks have

been recognized as a ‘public use’ for more than a cen-
tury” and that a court should not “substitute its
judgment for a legislature’s judgment as to what
constitutes a public use.” Ante at 7-8. But no one dis-
putes 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’ com-
mercial 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.” Id. at 2. 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 court excuses this evasion of lawful proce-

dures on the ground that the Town announced it
would turn the property it took away from the own-
ers into an empty field—or, in the Town’s preferred
 24a
Appendix A
language, a “passive use park.”1 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.” Ante
at 3.

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 prop-
erty 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.

The court appears to recognize that preventing

an owner from lawfully using his own property is not
a valid public purpose. That is why the court’s deci-
sion depends on the Town lying about its purpose. If
the Town of Southold had—openly and honestly—
explained that the reason it seized the Brinkmanns’
property was to stop the owners from using their
property in a lawful way, it would not be possible for
the court to say that the taking was “for a public
amenity.” Ante at 3. But because the Town has said
it will put a park on the Brinkmanns’ property—at
least initially, as there is no requirement that the
Town maintain the park for any length of time—the

1A “passive use park” is “a park with no significant facilities or

improvements.” J. App’x 29.
 25a
Appendix A
court says it does not care about the actual purpose
of the taking. In this way, the court’s decision grants
governments virtually unlimited power over private
property—as long as the governments are willing to
act in bad faith.

The court defends this new doctrine on the

ground of workability. It invokes Justice Scalia de-
scribing the difficulty of ascribing subjective motiva-
tions to a multimember legislature. See id. at 11
(“[D]iscerning the subjective motivation of [a legisla-
tive body] is, to be honest, almost always an impos-
sible task.”) (alteration in original) (quoting Edwards
v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia, J., dis-
senting)). In fact, Justice Scalia wrote that “it is pos-
sible to discern the objective ‘purpose’ of a statute
(i.e., the public good at which its provisions appear
to be directed)” but “discerning the subjective moti-
vation of those enacting the statute is, to be honest,
almost always an impossible task.” Edwards, 482
U.S. at 636 (Scalia, J., dissenting) (emphasis added).
In this case, the Brinkmanns rely on allegations that
the objective purpose behind the Town’s decision to
seize the property was interference with their lawful
use, and the court even agrees that their allegations
are plausible. “Frequently the most probative evi-
dence of intent will be objective evidence of what ac-
tually happened rather than evidence describing the
subjective state of mind of the actor,” and that is
true here. Washington v. Davis, 426 U.S. 229, 253
(1976) (Stevens, J., concurring). The allegations de-
scribe the outward conduct of the Town, and the rec-
ord does not reflect any divergent motivations among
 26a
Appendix A
the relevant public officials. See infra Part IV.

Courts frequently examine the purpose of gov-

ernment action when evaluating constitutional
claims. See, e.g., Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (“Proof of
racially discriminatory intent or purpose is required
to show a violation of the Equal Protection Clause.”);
Masterpiece Cakeshop, Ltd. v. Colorado Civ. Rts.
Comm’n, 584 U.S. 617, 638 (2018) (describing “the
State’s duty under the First Amendment not to base
laws or regulations on hostility to a religion or reli-
gious viewpoint”); Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993)
(“There are, of course, many ways of demonstrating
that the object or purpose of a law is the suppression
of religion or religious conduct.”); Allen v. Milligan,
599 U.S. 1, 11 (2023) (“The Fifteenth Amendment …
prohibits States from acting with a ‘racially discrim-
inatory motivation’ or an ‘invidious purpose’ to dis-
criminate.”); National Pork Producers Council v.
Ross, 598 U.S. 356, 364 (2023) (“[U]nder this Court’s
dormant Commerce Clause decisions, no State may
use its laws to discriminate purposefully against out-
of-state economic interests.”) (emphasis added);
Minnesota v. Clover Leaf Creamery Co., 449 U.S.
456, 476 (1981) (Powell, J., concurring in part and
dissenting in part) (contrasting “the avowed legisla-
tive purpose of the statute” with “the legislature’s
actual purpose”); Batson v. Kentucky, 476 U.S. 79, 99
(1986) (concluding that judicial inquiries into the
purpose of peremptory challenges would not “create
serious administrative difficulties”); Turner Broad.
 27a
Appendix A
Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994) (“[A] con-
tent-based purpose may be sufficient in certain cir-
cumstances to show that a regulation is content
based.”); Wallace v. Jaffree, 472 U.S. 38, 56 (1985)
(“[T]he First Amendment requires that a statute
must be invalidated if it is entirely motivated by a
purpose to advance religion.”); Smith v. Doe, 538
U.S. 84, 92 (2003) (“If the intention of the legislature
was to impose punishment, that ends the inquiry.”).2

In short, “[i]nquiring into legislative purpose … is

a common feature of judicial review, so there is no
reason to expect such an inquiry to prove unworka-
ble only in this context.”3 The court even concedes
that the Takings Clause, like these other constitu-
tional provisions, requires an inquiry into the pur-
pose behind the taking—at least sometimes. The
court recognizes that a taking would be unlawful if
“the exercise of eminent domain supposedly for a
park had been pretext for an intention to use taken
property for a different—and private—purpose,” that
is, for a purpose “to confer [a] private benefit.” Ante at
8. In this way, the court recognizes that an inquiry
into purpose is both workable and appropriate when
considering some claims under the Takings Clause.

2 In reviewing agency action under the Administrative Proce-

dure Act, moreover, courts determine “when an improper mo-
tive has influenced the decisionmaking process.” Merrick B.
Garland, Deregulation and Judicial Review, 98 Harv. L. Rev.
505, 556 (1985).
3Steven Menashi & Douglas H. Ginsburg, Rational Basis with
Economic Bite, 8 NYU J.L. & Liberty 1055, 1101 (2014).
 28a
Appendix A
When we consider a claim of a regulatory taking un-
der the Takings Clause, we similarly consider
whether “[t]he Town’s alleged conduct was unfair,
unreasonable, and in bad faith.” Sherman v. Town of
Chester, 752 F.3d 554, 565 (2d Cir. 2014) (applying
the Penn Central factors). In particular, we must de-
termine whether “the Town singled out [the owner’s]
development, suffocating him with red tape to make
sure he could never succeed in developing [his prop-
erty].” Id.4 That inquiry parallels the Brinkmanns’
claim in this case that the alleged purpose behind
the pretextual park is the bad faith intention to pre-
vent the owner’s lawful use. There is no justification
for deciding that this familiar type of judicial inquiry
is unworkable in this case.

II

We know that identifying such a bad faith purpose

is workable because a large body of case law estab-
lishes that courts must invalidate a pretextual tak-
ing in just these circumstances.

4 See also MHC Fin. Ltd. P’ship v. City of San Rafael, No. 00-
3785, 2006 WL 3507937, at *12 (N.D. Cal. Dec. 5, 2006) (“The
final Penn Central factor—the character of the government ac-
tion … depends on whether the property owner has been ‘sin-
gled out’ to bear a public burden, perhaps due to bad faith on
the part of the government, or has been called upon to provide
a public benefit rather than to avoid injury to other persons.”)
(citing E. Enters. v. Apfel, 524 U.S. 498, 537 (1998) (plurality
opinion)), rev’d in part, 714 F.3d 1118 (9th Cir. 2013).
 29a
Appendix A
A

The court’s decision today creates a split with the

decisions of several state supreme courts. The Con-
necticut Supreme Court, for example, has said that
“there is no merit” to the argument “that a viola-
tion of the public use requirement is limited to situa-
tions in which the government takes private proper-
ty for a use that is not a public use.” New England
Ests., LLC v. Town of Branford, 294 Conn. 817, 854
(2010). Rather, “[i]t is well established … that a gov-
ernment actor’s bad faith exercise of the power of
eminent domain is a violation of the takings clause,”
and indeed “many state courts have found a violation
of the takings clause on the basis of a bad faith exer-
cise of the power of eminent domain.” Id. (citing cas-
es).

In New England Estates, the Connecticut Su-

preme Court considered a Takings Clause challenge
involving circumstances similar to this case: the
owner sought to build an affordable housing devel-
opment on its property, but the town “was not recep-
tive to an affordable housing development.” Id. at
826. It seized the property, “claiming that its reasons
for the taking were to investigate and to remediate
any environmental contamination on the property,
and for the possible development of playing fields,
when in fact the town’s real purpose was to prevent
the proposed residential development of the proper-
ty.” Id. at 841. A jury agreed that “in taking the
land, the town either acted in bad faith, taking the
land for pretextual reasons, acted unreasonably, or
 30a
Appendix A
in an abuse of its power,” and the Connecticut Su-
preme Court held that such a pretextual taking vio-
lates the public use requirement of the Takings
Clause. Id. at 854.

The Georgia Supreme Court considered a case in

which the property owner had sought to construct a
hazardous waste facility and alleged that the con-
demnation of its property was “undertaken in bad
faith and for the sole purpose of defeating the con-
struction of the hazardous waste facility.” Earth
Mgmt., Inc. v. Heard Cnty., 248 Ga. 442, 446 (1981).
The Georgia Supreme Court acknowledged that the
county’s purported purpose—establishing a public
park—was a public purpose and that “the court is in
no position to second-guess Heard County as to the
size and scope of a park for its people.” Id. But the
court went on to consider “whether the action of the
county commissioner in condemning this parcel of
land was taken for the purpose of building a public
park or whether this was a mere subterfuge utilized
in order to veil the real purpose of preventing the
construction of a hazardous waste disposal facility.”
Id. at 446-47. The court concluded as follows:

Even fully considering the evidence re-

lied upon by Heard County, the ines-
capable conclusion is that although a
public park is a legitimate public use for
real estate, the appropriation of this
land for that purpose was not the true
reason for the institution of the con-
demnation proceeding here. We can only
 31a
Appendix A
conclude that Heard County instituted
the condemnation proceeding for the
obvious purpose of preventing the land
from being used as a hazardous waste
facility. Such action is beyond the power
conferred upon the county by law and
amounts to bad faith.

Id. at 448. In a subsequent case, the Georgia Su-

preme Court similarly concluded that the evidence
supported “the finding of the trial judge that the sole
commissioner directed the filing of the condemnation
not because of a need for a public safety training fa-
cility, but to block the City of Bremen’s planned facil-
ity.” Carroll County v. City of Bremen, 256 Ga. 281,
282 (1986). The Georgia Supreme Court invalidated
the taking because “[t]he condemning authority of a
county may not be used simply to block legitimate
public activity.” Id. And it explained that a govern-
ment may not use eminent domain to avoid normal
democratic procedures for regulating the use of
property. See id. at 282-83 (“While there was nothing
improper in the acts of the Commission in speaking
out against the facility and in urging the public to
express opposition to the state licensing authority,
it was improper to use the condemnation authority
to block the plant when other avenues failed.”).

Other state courts have similarly invalidated pre-

textual takings in circumstances similar to this case.
See Middletown Township v. Lands of Stone, 595 Pa.
607, 617 (2007) (“Recreational use must be the true
purpose behind the taking or else the Township
 32a
Appendix A
simply did not have the authority to act, and the tak-
ing was void ab initio.”); R.I. Econ. Dev. Corp. v. Park-
ing Co., 892 A.2d 87, 104 (R.I. 2006) (“[T]he condem-
nation … was inappropriate, motivated by a desire
for increased revenue and was not undertaken for a
legitimate public purpose.”); Essex Fells v. Kessler
Inst. for Rehab., 673 A.2d 856, 860-61 (N.J. Super.
1995) (Fuentes, J.) (explaining that “the decision to
condemn shall not be enforced where there has been
a showing of improper motives, bad faith, or some
other consideration amounting to a manifest abuse
of the power of eminent domain” and specifically
“where a condemnation is commenced for an appar-
ently valid, stated purpose but the real purpose is to
prevent a proposed development which is considered
undesirable, the condemnation may be set aside”)
(internal quotation marks omitted); Pheasant Ridge
Assocs. v. Town of Burlington, 399 Mass. 771, 776
(1987) (“Bad faith in the use of the power of eminent
domain is not limited to action taken solely to benefit
private interests. It includes the use of the power of
eminent domain solely for a reason that is not prop-
er, although the stated public purpose or purposes
for the taking are plainly valid ones.”); In re Hewlett
Bay Park, 265 N.Y.S.2d 1006, 1010 (N.Y. Sup. Ct.
1966) (“This court has come to the conclusion that
the real purpose of this condemnation proceeding in
larger part is not to use this property for something
affirmative, so much as it is to prevent its use for
something else which the village authorities regard
as undesirable. Such is a perversion of the condem-
nation process.”).
 33a
Appendix A
Still other state courts, even when allowing a tak-
ing, have reaffirmed the principle that a pretextual
or bad faith taking is impermissible. See, e.g., Nor-
wood v. Horney, 110 Ohio St. 3d 353, 373-74 (2006)
(“There can be no doubt that our role—though lim-
ited—is a critical one that requires vigilance in re-
viewing state actions for the necessary restraint, in-
cluding review to ensure … that the state proceeds
fairly and effectuates takings without bad faith, pre-
text, discrimination, or improper purpose.”); City of
Las Vegas Downtown Redev. Agency v. Pappas, 119
Nev. 429, 448 (2003) (“A property owner may raise,
as an affirmative defense to the taking, that … the
avowed public purpose is merely a pretext or used in
bad faith.”) (footnotes omitted).

The court quibbles that some of these cases ap-

plied a mixture of the federal Takings Clause and
state law analogues. See ante at 13-19. There are
three problems with this objection.

First, the longstanding body of law in the state

courts undermines the argument that it is “impossi-
ble” for a court to determine whether “a government
actor had bad reasons” for taking property—at least
when the allegedly improper purpose is the preven-
tion of the owner’s lawful use (as opposed to the cov-
ert purpose to benefit a private party, which the
court says it is perfectly capable of ferreting out). Id.
at 11. To the extent that the court provides a ra-
tionale for its decision today, it is that courts must
defer to a government’s judgment because inquiring
 34a
Appendix A
into purpose would be unworkable. Yet the experi-
ence of the state courts shows that it is not.5

Second, the state courts adopted the prohibition

on pretextual takings from the federal courts. In ap-
plying the principle, the Massachusetts Supreme
Judicial Court observed that “the Federal courts
have recognized the possibility that a condemnation
may be arbitrary, capricious, or in bad faith.” Pheas-
ant Ridge, 399 Mass. at 776. And it was correct.

Our own court, for example, rejected a challenge

to a federal condemnation because the condemnation
was for “a legitimate public use” and could not be
construed “as either arbitrary or capricious or an ev-
idence of bad faith.” United States v. New York, 160
F.2d 479, 481 (2d Cir. 1947).6 The Supreme Court
similarly said that a taking would be invalid “if the
designated officials had acted in bad faith or so ‘ca-
priciously and arbitrarily’ that their action was
without adequate determining principle or was un-
reasoned.” United States v. Carmack, 329 U.S. 230,
243 (1946).

5 Cf. Jeffrey S. Sutton, Who Decides?: States as Laboratories of

Constitutional Experimentation 222 (2022) (arguing, in the
context of administrative law, that “[t]he state experiences de-
feat some of the federal explanations for … continuing to em-
brace a broad deference model”) (emphasis omitted).
6 See also Goldstein v. Pataki, 516 F.3d 50, 63 (2d Cir. 2008)

(recognizing “the possibility that a fact pattern may one day

arise in which the circumstances of the approval process so
greatly undermine the basic legitimacy of the outcome reached
that a closer objective scrutiny of the justification being offered
is required”).
 35a
Appendix A
At least five other circuits have recognized the
same prohibition on pretextual or bad faith tak-
ings. See United States v. 101.88 Acres of Land, 616
F.2d 762, 767 (5th Cir. 1980) (“The court may ask in
this inquiry whether the authorized officials were
acting in bad faith or arbitrarily or capriciously by
condemning given land.”); United States v. 58.16
Acres of Land, 478 F.2d 1055, 1058 (7th Cir. 1973)
(“The determination of whether the taking of private
property is for public use may appropriately and ma-
terially be aided by exploring the good faith and ra-
tionality of the governmental body in exercising its
power of eminent domain.”); S. Pac. Land Co. v.
United States, 367 F.2d 161, 162 (9th Cir. 1966)
(“[T]he Supreme Court itself has declined to rule out
the possibility of judicial review where the adminis-
trative decision to condemn a particular property or
property interest is alleged to be arbitrary, capri-
cious, or in bad faith. And various courts of appeal,
including this one, have said that an exception to ju-
dicial non-reviewability exists in such circumstanc-
es.”) (emphasis and citation omitted); Wilson v. Unit-
ed States, 350 F.2d 901, 907 (10th Cir. 1965) (“In the
absence of bad faith, … if the use is a public one, the
necessity for the desired property as a part thereof is
not a question for judicial determination.”) (empha-
sis added); United States v. 64.88 Acres of Land, 244
F.2d 534, 536 (3d Cir. 1957) (“It is well established
that, absent bad faith which is not argued here, the
government’s determination and explicit assertion of
the nature and extent of the estate to be taken are
not judicially reviewable.”) (emphasis added).
 36a
Appendix A
It is difficult to maintain that the “bad faith” lim-
itation on the eminent domain power is a creature of
state law when the state courts adopted the limita-
tion from federal law.

Third, there is no reason to expect significant di-

vergence between the federal Takings Clause and a
state law analogue because both provisions codify a
pre-existing common-law right. As the Georgia Su-
preme Court once explained, “the amended Constitu-
tion of the United States, which declares ‘private
property shall not be taken for public use without
just compensation,’ does not create or declare any
new principle of restriction, either upon the legisla-
tion of the National or State governments, but simp-
ly recognised the existence of a great common law
principle, founded in natural justice, especially ap-
plicable to all republican governments.” Young
v. McKenzie, 3 Ga. 31, 44 (1847).7 The right was rec-
ognized in the Magna Carta,8 and it was protected in

7 See also Henry v. Dubuque & P.R. Co., 10 Iowa 540, 543-44
(1860) (“The plaintiff needed no constitutional declaration to
protect him in the use and enjoyment of his property against
any claim or demand of the company to appropriate the same to
their use, or the use of the public. To be thus protected and
thus secure in the possession of his property is a right inaliena-
ble, a right which a written constitution may recognize or de-
clare, but which existed independently of and before such
recognition, and which no government can destroy.”).
8 Magna Carta art. XXVIII (“No constable or other royal official
shall take corn or other movable goods from any man without
immediate payment, unless the seller voluntarily offers post-
ponement of this.”); see also Young, 3 Ga. at 44 (tracing the
right “to Magna Charta, the learned commentaries of Black-
 37a
Appendix A
the colonies and the early republic before the ratifi-
cation of the Bill of Rights.9 When a constitutional
provision was “understood to codify a pre-existing
right, rather than to fashion a new one,” its scope
generally corresponds to those of “state analogues.”
District of Columbia v. Heller, 554 U.S. 570, 603,
626 (2008). The state analogues inform the meaning
of the public use requirement. The alternative ap-
proach would treat the federal Takings Clause as an
“odd outlier, protecting a right unknown in state con-
stitutions or at English common law.” Id. at 603.10

stone on the common law, and the opinions of the distinguished

jurists and eminent judges of our own country”).
9 See James W. Ely Jr., “That Due Satisfaction May Be Made:”
The Fifth Amendment and the Origins of the Compensation
Principle, 36 Am. J. Legal Hist. 1, 4 (1992) (“[B]oth colonial and
post-Revolutionary practice, as well as constitutional theory,
supported the compensation requirement.”); William B. Stoe-
buck, A General Theory of Eminent Domain, 47 Wash. L. Rev.
553, 583 (1972) (“[C]ompensation was the regular practice in
England and America, as far as we can tell, during the whole
colonial period.”); J.A.C. Grant, The “Higher Law” Background
of the Law of Eminent Domain, 6 Wis. L. Rev. 67, 71 (1931)
(“[U]nder the banner of a ‘higher law,’ the courts declared
themselves to be the guardians of the sanctity of vested rights
in property against their appropriation for other than a public
use or without just compensation.”); see also Norwood, 110 Ohio
St. 3d at 364 (“[A]lmost every state constitution eventually in-
cluded provisions related to eminent-domain powers.”).
10 The court suggests that the state provisions are not suffi-

ciently analogous, but the state cases apply the federal Takings
Clause, a similarly worded state constitutional provision that
imposes a public use requirement, or both. See New England
Ests., 294 Conn. at 853 (applying the Fifth Amendment); Earth
 38a
Appendix A
III

Despite the large body of state and federal law

suggesting otherwise, the court announces that
“courts do not inquire into alleged pretexts,” ante at
3—again with the proviso that courts do inquire
when the alleged pretext is conferring a private ben-
efit, id. at 8. The court acknowledges that the Su-
preme Court and the federal circuit courts have pre-
viously said that bad faith takings violate the Tak-
ings Clause. Id. at 20-21 (citing S. Pac. Land Co.,

Mgmt., 248 Ga. at 446 (applying state constitutional principle

that “no private property shall be taken except for a public
purpose”); Middletown Township, 595 Pa. at 617 (noting that
the federal Takings Clause provides that “without a public
purpose, there is no authority to take property from private
owners,” and that the Pennsylvania Supreme Court “has looked
for the ‘real or fundamental purpose’ behind a taking”); R.I.
Econ. Dev., 892 A.2d at 96 (explaining that “both the United
States Constitution and the Rhode Island Constitution” provide
that “private property may be taken only for public uses”); Es-
sex Fells, 673 A.2d at 860 (relying on both the federal Takings
Clause and the state constitutional provision providing that
“[p]rivate property shall not be taken for public use without
just compensation”) (quoting N.J. Const. art. I, ¶ 20); Pheasant
Ridge Assocs., 399 Mass. at 775-76 (relying on federal and state
case law proscribing bad faith takings); Hewlett Bay Park, 265
N.Y.S.2d at 1007 (considering petition to set aside a taking “as
not having been made in good faith nor for a public purpose as
required by the Constitutions of the State of New York and of
the United States of America”); Norwood, 110 Ohio St. 3d at
364 (discussing “the limitations of public use and compensa-
tion” in the federal and state constitutions); Pappas, 119 Nev.
at 434 (“Both the United States and Nevada Constitutions al-
low the taking of private property for public use provided just
compensation is paid to the private property owner.”).
 39a
Appendix A
367 F.2d at 162; Carmack, 329 U.S. at 243-44). But
the court decides that those cases have been over-
ruled. “That may have been so in 1966, but it is not
so now,” the court says, because “[t]he Supreme
Court’s current pronouncement on ‘pretext’ concerns
only the pretext of non-public (that is, private) use.”
Id. at 21 (citing Kelo, 545 U.S. at 478). In fact, nei-
ther Kelo nor our court’s decision in Goldstein dis-
carded the longstanding prohibition on pretextual,
bad faith takings.

In Kelo, the Supreme Court stated that a gov-

ernment is not “allowed to take property under the
mere pretext of a public purpose, when its actual
purpose was to bestow a private benefit.” Kelo, 545
U.S. at 478. Today’s decision interprets this state-
ment to mean that the only impermissible pretext is
bestowing a private benefit. But Kelo addressed the
issue of a private benefit because the taking at issue
in that case involved the transfer of property “from
one private party to another.” Id. at 477. The peti-
tioners argued that the actual purpose of the taking
was to bestow a private benefit.

The trial court explained that “[w]here the pur-

pose … is economic development and that develop-
ment is to be carried out by private parties or private
parties will be benefited, the court must decide if the
stated public purpose—economic advantage to a city
sorely in need of it—is only incidental to the benefits
that will be conf[err]ed on private parties of a devel-
opment plan.” Kelo v. City of New London, No.
 40a
Appendix A
557299, 2002 WL 500238, at *36 (Conn. Super. Ct.
Mar. 13, 2002). And the trial court “conducted a care-
ful and extensive inquiry” in which:

[t]he trial court considered testimony

from government officials and corporate
officers, documentary evidence of com-
munications between these parties, re-
spondents’ awareness of New London’s
depressed economic condition and evi-
dence corroborating the validity of this
concern, the substantial commitment of
public funds by the State to the devel-
opment project before most of the pri-
vate beneficiaries were known, evidence
that respondents reviewed a variety of
development plans and chose a private
developer from a group of applicants ra-
ther than picking out a particular trans-
feree beforehand, and the fact that the
other private beneficiaries of the project
are still unknown because the office
space proposed to be built has not yet
been rented.

Kelo, 545 U.S. at 491-92 (Kennedy, J., concurring)

(citations omitted). The trial court “concluded, based
on these findings, that benefiting [the private party]
was not ‘the primary motivation or effect of this de-
velopment plan,’” id. at 492, and the Supreme Court
agreed, see id. at 478 (majority opinion) (“The trial
judge and all the members of the Supreme Court of
 41a
Appendix A
Connecticut agreed that there was no evidence of an
illegitimate purpose in this case.”).

If the alleged illegitimate purpose in Kelo had not

been the bestowal of a private benefit but the obstruc-
tion of the owner’s lawful use, then the trial court
and the Connecticut Supreme Court would have con-
sidered whether there was evidence of that imper-
missible purpose. We know that because the Con-
necticut Supreme Court has specifically held that
the public use requirement of the federal Takings
Clause is not “limited to situations in which the gov-
ernment takes private property for a use that is not a
public use” but is violated when a government “either
acted in bad faith, taking the land for pretextual
reasons, acted unreasonably, or in an abuse of its
power.” New England Ests., 294 Conn. at 854.
In particular, a municipal government “violate[s]
the public use requirement by being dishonest about
the reasons for which it took the land” because “[i]t
is well established … that a government actor’s bad
faith exercise of the power of eminent domain is a
violation of the takings clause.” Id.

The Supreme Court’s specific mention of private

benefits reflected the record before it.11 It cannot be
read to sweep away the pre-existing body of federal
or state law that other types of pretextual takings vi-
olate the public use requirement. Certainly, the Con-
necticut Supreme Court does not understand Kelo to
have done that:

11See Goldstein, 516 F.3d at 61 (“[T]he Supreme Court’s guid-

ance in Kelo need not be interpreted in a vacuum.”).
 42a
Appendix A
[R]eliance on Kelo v. New London for
the proposition that only a taking for
the purpose of conferring a benefit on a
private party constitutes a violation of
the public use requirement, interprets
that decision overbroadly. Kelo did not
involve any allegations that the city of
New London acted in bad faith in taking
private property. Therefore, the issue of
whether a bad faith taking would vio-
late the public use requirement was not
before the court.

New England Ests., 294 Conn. at 854 n.28 (citations

omitted).12 In short, that sentence from Kelo cannot
bear the weight the court puts on it.

The court puts additional weight on Goldstein,

suggesting that our court has discarded earlier case
law prohibiting bad faith takings.13 In fact,

12See also New England Ests., 294 Conn. at 854 (“Although the
United States Supreme Court has not yet addressed this issue
directly, we agree with those jurisdictions concluding that the
public use clause should not be interpreted so narrowly. Indeed,
many state courts have found a violation of the takings clause
on the basis of a bad faith exercise of the power of eminent do-
main.”).
13 But see Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490

U.S. 477, 484 (1989) (“If a precedent of [the Supreme Court]

has direct application in a case, … the Court of Appeals should
follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.”); Jones v. Cough-
 43a
Appendix A
Goldstein does not do that either.

Goldstein involved a claim similar to Kelo: prop-

erty was condemned for an economic development
project, and the owners alleged that the govern-
ment’s “claims of public benefit are a pretext to justi-
fy a private taking,” Brief for Plaintiffs-Appellants at
14, Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008)
(No. 07-2537), 2007 WL 6158382, concealing the ac-
tual purpose to “enrich[] the private individual who
proposed [the project] and stands to profit most from
its completion,” 516 F.3d at 53.

If the allegations had been plausible, there is no

question that the property owners would have stated
a claim. Even today’s decision acknowledges that a
property owner would survive a motion to dismiss
based on plausible allegations that the actual pur-
pose of a taking was to confer a private benefit. Thus,
we affirmed the dismissal of the complaint not be-
cause pretextual takings are permissible but because
the allegations of pretext were “conclusory.” Id. at 56,
63. The owners “failed to allege … any specific illus-
tration of improper dealings between [the private
developer] and the pertinent government officials,”
even though the claim of pretext depended on show-
ing that the officials aimed to benefit the developer.
Id. at 64. We declined to allow “such a claim to go
forward, founded on mere suspicion.” Id. at 62.

lin, 45 F.3d 677, 679 (2d Cir. 1995) (“A decision of a panel of
this Court is binding unless and until it is overruled by the
Court en banc or by the Supreme Court.”).
 44a
Appendix A
In Goldstein, “even if Plaintiffs could prove every
allegation in the Amended Complaint, a reasonable
juror would not be able to conclude that the public
purposes offered in support of the Project were ‘mere
pretexts’ within the meaning of Kelo.” Id. at 55 (al-
teration omitted) (quoting Goldstein v. Pataki, 488 F.
Supp. 2d 254, 288 (E.D.N.Y. 2007)). That case does
not resemble this one, in which our panel unani-
mously agrees that “[t]he complaint alleges facts suf-
ficient to support a finding that the decision to create
the park was a pretext.” Ante at 2.

The court relies heavily on a sentence from Gold-

stein to the effect that “review of a legislature’s pub-
lic-use determination is limited such that where the
exercise of the eminent domain power is rationally
related to a conceivable public purpose, the compen-
sated taking of private property is not proscribed by
the Constitution.” Id. at 9 (alterations omitted)
(quoting Goldstein, 516 F.3d at 58). Here is that sen-
tence in context:

The Supreme Court has therefore in-

structed lower courts not to “substitute
[their] judgment for a legislature’s
judgment as to what constitutes a pub-
lic use ‘unless the use be palpably with-
out reasonable foundation.’” To that end,
we have said that our review of a legis-
lature’s public-use determination is lim-
ited such that “‘where the exercise of the
eminent domain power is rationally re-
lated to a conceivable public purpose,’ ...
 45a
Appendix A
the compensated taking of private prop-
erty for urban renewal or community
redevelopment is not proscribed by the
Constitution.”

Goldstein, 516 F.3d at 58 (emphasis added) (citations

omitted). The context shows that judicial deference
to the legislature is appropriate with respect to “what
constitutes a public use,” not with respect to the dis-
tinct question of whether the purported public use
was genuine or pretextual. In this case, no one dis-
putes that a park would be a public use if it were the
Town’s actual purpose.

Moreover, it is worth emphasizing—as Justice

Kennedy did in Kelo—that “[t]he determination that
a rational-basis standard of review is appropriate”
does not “alter the fact” that pretextual takings “are
forbidden by the Public Use Clause.” Kelo, 545 U.S.
at 490 (Kennedy, J., concurring). Thus, “[a] court ap-
plying rational-basis review under the Public Use
Clause should strike down a taking” shown to be pre-
textual, “just as a court applying rational-basis re-
view under the Equal Protection Clause must strike
down a government classification that is clearly in-
tended to injure a particular class of private parties,
with only incidental or pretextual public justifica-
tions.” Id. at 491 (citing Cleburne v. Cleburne Living
Center, Inc., 473 U.S. 432, 446-47, 450 (1985); Dep’t
of Agric. v. Moreno, 413 U.S. 528, 533-36 (1973)). In
this way, the Kelo-Goldstein standard still means
that “[a] court confronted with a plausible accusa-
tion” of an impermissible pretextual taking “should
 46a
Appendix A
treat the objection as a serious one and review the
record to see if it has merit” and should conduct “a
careful and extensive inquiry.” Id.

Subsequent to Kelo and Goldstein, a district court

in our circuit considered allegations of a pretextual,
bad faith taking that did not involve the transfer of a
private benefit. In Wellswood Columbia, LLC v.
Town of Hebron, the plaintiffs alleged that the actu-
al “purpose of the defendant Town of Hebron’s ac-
tions in taking the Plaintiffs’ property was to inter-
fere with the Plaintiffs’ lawful and economically pro-
ductive use and development of the Property.” No.
10-CV-01467, 2013 WL 5435532, at *3 (D. Conn.
Sept. 30, 2013). The district court, relying on New
England Estates, explained that “if Plaintiff has in-
deed pled a distinct bad faith takings claim pursuant
to the public use requirement of the Fifth Amend-
ment, such a claim is properly before this court.” Id.
at *2. If Kelo or Goldstein overruled the longstanding
prohibition on bad faith takings, that would be news
to several courts.14

14 See, e.g., Roxul USA, Inc. v. Bd. of Educ., No. 19-CV-54, 2019

WL 2016866, at *3 (N.D. W. Va. May 7, 2019) (“[T]he Fifth

Amendment presupposes that the state acted in pursuit of a
valid purpose. Although the Court agreed that the BOE’s
claimed reason for the taking would constitute a public use—as
the BOE stated it intended to build a school facility to meet the
community’s educational needs—the Court found that the
BOE’s actions lacked any legitimate government interest, were
motivated by animus, and were arbitrary, capricious, and in
bad faith.”) (emphasis added); United States v. 5.0 Acres of
Land, No. 04-C-4325, 2008 WL 4450315, at *4 (N.D. Ill. Sept.
 47a
Appendix A
IV

How plausible were the allegations of pretext in

this case? “We review a district court’s grant of a mo-
tion to dismiss de novo, accepting as true all factual
claims in the complaint and drawing all reasonable
inferences in the plaintiff’s favor.” Altimeo Asset
Mgmt. v. Qihoo 360 Tech. Co., 19 F.4th 145, 147 (2d
Cir. 2021) (quoting Henry v. County of Nassau, 6
F.4th 324, 328 (2d Cir. 2021)).

In order to build a hardware store on their prop-

erty in Southold, the Brinkmanns sought to comply
with the requirements of the Town. In May 2017, the
Brinkmanns met with the Southold Town Planning
Department to convey their plan for the vacant lot. S.
App’x 2. The Brinkmanns then had two meetings, in
July and September 2017, with the Mattituck-Laurel
Civic Association. J. App’x 17. At the September
meeting, some residents expressed concerns about
traffic, and the Brinkmanns volunteered to pay for

30, 2008) (“[T]he Supreme Court has not ruled out the possibil-
ity of judicial review where the administrative decision to con-
demn a particular property or property interest is alleged to be
arbitrary, capricious, or in bad faith. Seventh Circuit caselaw
recognizes that an exception exists to the general powerless-
ness of courts to review eminent domain takings in circum-
stances of bad faith or abuse of discretion. It has stated that
when ‘questions of bad faith, arbitrariness, and capriciousness
[have been raised], the district court [is] required to resolve
those questions.’”) (citations omitted) (quoting 58.16 Acres of
Land, 478 F.2d at 1059) (citing Carmack, 329 U.S. at 243-44;
United States v. Meyer, 113 F.2d 387, 392 (7th Cir. 1940)).
 48a
Appendix A
traffic studies. Id. at 17-18.15 The Brinkmanns had
additional discussions about the plan with the Town
Planning Department—and made two separate
rounds of revisions based on those discussions—
before submitting a formal application to build the
hardware store to the Town Building Department. J.
App’x 18. Nonetheless, the Building Department ul-
timately denied their formal permit application on
the ground that the Planning Department had not
formally approved the site plan. Id. at 18-19. In 2018,
the Brinkmanns’ architects completed their designs,
complying with the Planning Department’s request
that the Brinkmanns’ proposed buildings abut the
main road and provide space for parking in the back;
the Brinkmanns and their architects then met with
the Planning Department for a preliminary meeting
and submitted the application for site-plan approval.
Id. at 19.

Meanwhile, the Town imposed additional re-

quirements. In June 2018, the Town informed the
Brinkmanns that they needed to obtain a Special
Exception Permit, which involved a $1,000 fee, and a
Market and Municipal Impact Study (“Study”) at a
cost later determined to be $30,000. Id.; S. App’x 3.
Only after the sixteen-month back-and-forth with the
Brinkmanns over the proposed hardware store did
the Town Board, in September 2018, first vote to
purchase the Brinkmanns’ property for the purpose
of stopping the construction of the hardware store. J.

15 The traffic study was completed in 2020 and concluded that

the Brinkmanns’ proposal would not create a traffic problem. J.

App’x 18.
 49a
Appendix A
App’x 22. The Town also tried intimidation. In Octo-
ber 2018, Scott Russell, the Town Supervisor, called
the president of the Bridgehampton National Bank
to pressure him not to sell the property to the
Brinkmanns—despite the Bank’s contractual obliga-
tion to complete the sale—and instead to sell it to
the Town. Id. at 24. After this pressure failed, Assis-
tant Town Attorney Donna Hagen called the Bank’s
attorney to pressure the Bank not to sell to the
Brinkmanns. Id.

After its efforts to intimidate the Bank failed, the

Town contrived additional regulatory hurdles, even
after the Brinkmanns complied with the Town’s de-
mand for $30,000 for the Study in January 2019. Id.
at 25. Just six weeks later, in February 2019, the
Town enacted a six-month building permit moratori-
um on a one-mile stretch of road that covered the
Brinkmanns’ property. Id. During this six-week peri-
od, the Town did not begin work on the Study, which
it was required to conduct within 90 days of receiv-
ing the application. Id. at 25-26; see Town of
Southold City Code § 280-45(B)(10)(b). The Town
twice extended the six-month building moratorium
in August 2019 and July 2020 even though, at both
times, Suffolk County recommended that the Town
disapprove the extensions because no evidentiary
support justified the moratorium. Id. at 26-27. The
moratorium was not strictly enforced—at least for
other properties. Id. at 27-28. Despite the small size
of the area subject to the moratorium, the Town
granted at least three waivers for other properties
 50a
Appendix A
while it was in effect—suggesting that the moratori-
um targeted one particular property. Id. at 27-28.

The Brinkmanns plausibly allege that the Town

sought to stop construction of their hardware store.

The Brinkmanns also plausibly allege that the

Town’s stated purpose of a public park was pre-
textual. The Town expressed no interest in acquiring
the property for a park in 2011 when the property was
up for sale or during the five years that the property
sat vacant under the Bank’s ownership. Id. at 15-16.
Throughout the Brinkmanns’ discussions with the
Town, no one communicated to the Brinkmanns any
interest in placing a park on the property. No one
mentioned such an interest during the meeting with
the Civic Association, id. at 18; in communications
with the Town Building Department, id. at 19; or
when the Town required the Brinkmanns to pay
$30,000 for the Market and Municipal Impact Study,
id. at 20. At the time the Town Board voted to pur-
chase the property from the Brinkmanns, it was
clear that the Town was not proposing the purchase
for the purpose of constructing a park because at
that time the Town had not:

engaged in any planning for a public

park on the property; had not tasked
any Town committee with evaluating
the possibility of a new public park on
the property; had not tasked any Town
planning staff with evaluating the pos-
 51a
Appendix A
sibility of a new public park on the
property; had not conducted any finan-
cial analyses of creating a new park on
the property; had not evaluated any al-
ternative location for a new public park
somewhere other than the property (in-
cluding, for example, the possibility of
purchasing the undeveloped land for
sale next to the property); had not sur-
veyed Town citizens or held stakeholder
meetings with citizens about purchasing
the property for a new park; had not
conducted any geotechnical survey of
the property to determine its suitability
for a public park; had not held any pub-
lic hearings about creating a new public
park on the property; had not retained
any outside consultants to evaluate the
property as a location for a new public
park; and had not retained any archi-
tects, contractors, traffic engineers, or
landscapers to evaluate the property or
design and build a new park on the
property.

Id. at 22-23. When he attempted to pressure the

Bank in 2018 to sell the property to the Town rather
than to the Brinkmanns, the town supervisor never
mentioned a goal of building a park on the property,
instead saying, “I will never allow anything to be
built on that property.” Id. at 24.16 Moreover, at the

16 The court cites this statement as evidence that the Town had

no impermissible purpose in seizing the property, see ante at 8,

 52a
Appendix A
time the Brinkmanns filed their complaint, there was
an undeveloped plot next to the Brinkmanns’ proper-
ty that the Town could have turned into a park but
never expressed any interest in acquiring. J. App’x
23-24.

Sarah E. Nappa, a member of the Southold Town

Board, published an op-ed in the local newspaper en-
titled “Eminent domain decision sets dangerous prec-
edent,” describing why she voted against seizing the
property.17 In the op-ed, she never even suggests
anyone wanted a park at the location.18 Instead,
she acknowledges that the decision was based on
the Town’s opposition to the hardware store. Be-
cause “[a] comprehensive [Town] plan has been lan-
guishing for over 10 years, and although it is finally
completed and adopted, it is still not implemented,”
she writes, “I completely understand and see the
desperation that the members of this community
have and feel that this drastic action is the only
thing they have left.” However, she objects to using
eminent domain “simply because this administration
couldn’t get its act together” to amend the town code
through lawful procedures. “[T]his is privately

but the statement evidences (1) the Town’s purpose to obstruct

the Brinkmanns’ lawful use of the property and (2) the lack of a
plan to build a park, the ostensible public use.
17Sarah Nappa, Guest Column: Eminent Domain Decision Sets
a Dangerous Precedent, Suffolk Times (Sept. 19, 2020), availa-
ble at https://perma.cc/7YD2XQ4X. The column is quoted in the
complaint. See J. App’x 29-30; see also id. at 1097 (noting Nap-
pa’s vote against the seizure).
18 See Nappa, supra note 17.
 53a
Appendix A
owned land that the owners purchased with certain
legal rights intact. They are not asking for anything
beyond what the town code allows,” Nappa writes. “If
this town wants to prevent a certain size of business
or not allow certain types of businesses in a certain
zone, it needs to be written in the code.” But instead
of passing such a law, the Town seized the Brink-
manns’ property to prevent their lawful use of it:

I can’t help but wonder, if this applica-

tion had been filed by anyone but an
outsider, if this business was owned and
operated by a member of the “old boys
club,” would the town still be seizing
their private property? The use of emi-
nent domain by Southold Town to take
private property from an owner because
it doesn’t like the family or their busi-
ness model is a dangerous precedent to
set.19

There is no real dispute that the park was a pretext.

Taken together, the allegations establish a viola-

tion of the public use requirement of the Takings
Clause. The Brinkmanns plausibly allege “a fact pat-
tern … in which the circumstances of the approval
process so greatly undermine the basic legitimacy
of the outcome that a closer objective scrutiny of the
justifications being offered is required.” Goldstein,

19 Id.
 54a
Appendix A
516 F.3d at 63. In particular, the Brinkmanns plau-
sibly allege that the Town’s stated “purpose of build-
ing a public park … was a mere subterfuge utilized
in order to veil the real purpose” of preventing the
owner’s lawful use of the property. Earth Mgmt., 248
Ga. at 447. Under the Takings Clause, towns are not
“allowed to take property under the mere pretext of
a public purpose,” Kelo, 545 U.S. at 478, and the
avowed public purpose “must be the true purpose
behind the taking,” Middletown Township, 595 Pa.
at 617. This is because “where a condemnation is
commenced for an apparently valid, stated purpose
but the real purpose is to prevent a proposed devel-
opment which is considered undesirable, the con-
demnation may be set aside,” Essex Fells, 673 A.2d
at 861. The complaint plausibly alleges that the ac-
tual purpose of the Town in seizing the property was
to prevent the owners from building a hardware
store on the property, which the local laws and regu-
lations allowed them to do. When “the real purpose
of [a] condemnation proceeding” is “to prevent [the
property’s] use for something else which the village
authorities regard as undesirable,” it “is a perversion
of the condemnation process.” Hewlett Bay Park, 265
N.Y.S.2d at 1010. “The condemning authority of a
county may not be used simply to block legitimate
public activity.” Carroll County, 256 Ga. at 282.

Under these circumstances, “the designated offi-

cials … acted in bad faith.” Carmack, 329 U.S. at
243. “Bad faith … includes the use of the power of
eminent domain solely for a reason that is not prop-
er, although the stated public purpose or purposes
 55a
Appendix A
for the taking are plainly valid ones.” Pheasant
Ridge Assocs., 399 Mass. at 776. We have said that a
taking is invalid when there is “evidence of bad faith.”
New York, 160 F.2d at 481. The “well estab-
lished” rule is “that a government actor’s bad
faith exercise of the power of eminent domain is a vio-
lation of the takings clause,” New England Ests., 294
Conn. at 854, which requires the government to “ef-
fectuate[] takings without bad faith, pretext, dis-
crimination, or improper purpose,” Norwood, 110
Ohio St. 3d at 374. Because the complaint plausibly
alleges that the Town of Southold seized property in
bad faith for an improper purpose, it should survive
a motion to dismiss.

* * *

“If ever there were justification for intrusive judi-

cial review of constitutional provisions that protect
‘discrete and insular minorities,’ surely that principle
would apply with great force to the powerless groups
and individuals the Public Use Clause protects.” Kelo,
545 U.S. at 521-22 (Thomas, J., dissenting) (citation
omitted) (quoting United States v. Carolene Products
Co., 304 U.S. 144, 152, n.4 (1938)). During oral ar-
gument in this appeal, the Town frankly acknowl-
edged that, under its view of the public use require-
ment, the Town could seize the homes of disfavored
minorities—out of animus toward those minorities
and a desire to drive them out of Southold—as long
as the Town said it would build parks where the mi-
norities’ homes once stood.20 Political majorities ex-

20 Oral Argument Audio Recording at 15:50 to 17:10.

 56a
Appendix A
press animus toward all sorts of disfavored minori-
ties, so I do not share the court’s confidence that
such an abuse of the eminent domain power would
be redressable through “some other constitutional or
statutory provision.” Ante at 21. I would instead en-
force the public use requirement of the Takings
Clause.

The court’s decision today demonstrates that even

if one might think that prior cases have “constru[ed]
the Public Use Clause to be a virtual nullity,” Kelo,
545 U.S. at 506 (Thomas, J., dissenting), it is pos-
sible to erode it further still. I would adhere to prec-
edent providing that a pretextual, bad faith taking
violates the public use requirement. Because the
Brinkmanns plausibly allege that the Town effected
the taking in bad faith for the impermissible purpose
of thwarting the owners’ lawful use of their property,
I would reverse the judgment of the district court
and allow their claim to proceed. Accordingly, I dis-
sent.
 57a
Appendix B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

BEN BRINKMANN,
HANK BRINKMANN, and
MATTITUCK 12500 LLC.,
Plaintiffs,

v. MEMORANDUM
AND ORDER
TOWN OF SOUTHOLD, 21-CV-2468 (LDH)
NEW YORK,
Defendant.

LASHANN DEARCY HALL, United States Dis-

trict Judge:

Ben Brinkmann, Hank Brinkmann, and

Mattituck 12500 LLC (“Plaintiffs”) bring this action
against the Town of Southold, New York (“Defend-
ant”) pursuant to 42 U.S.C. § 1983 alleging a “pre-
textual taking” in violation of the Takings Clause of
the Fifth Amendment of the United States Constitu-
tion. Defendant moves pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure to dismiss the
complaint in its entirety.
 58a
Appendix B
BACKGROUND1

Ben and Hank Brinkmann are brothers who,

along with their sister, Mary Brinkmann, run a
chain of four midsize hardware stores in Long Is-
land. (Compl. ¶¶ 15–19, ECF No. 1.) In 2011,
Plaintiffs set their sights on a vacant lot in Southold,
New York, for expansion of their business, but
Bridgehampton National Bank purchased the lot be-
fore Plaintiffs could purchase it. (Id. ¶¶ 23–25.) On
December 2, 2016, after declining to develop the
property, the bank contracted with Plaintiffs to sell
the lot for $700,000. (Id. ¶ 28.) The purchase con-
tract included a due diligence provision to allow
Plaintiffs to ensure that they could develop the lot
prior to finalizing the purchase, so Plaintiffs imme-
diately began planning. (Id. ¶ 30–31.) Plaintiffs al-
lege, however, that Defendant thwarted their efforts
at every turn.

After agreeing to buy out a local Southold hard-

ware store and engaging an architect to draw up site
plans that would match the surrounding neighbor-
hood design aesthetic, Plaintiffs met with the
Southold Town Planning Department in May 2017 to
discuss their plans. (Id. ¶ 32–35.) In September
2017, Plaintiffs held a public meeting with the
Mattituck-Laurel Civic Association attended by
Southold Town Supervisor Scott Russell and “at
least two councilmembers.” (Id. ¶¶ 37–39.) At the

1The following facts are taken from the complaint and are as-
sumed to be true for the purpose of this memorandum and or-
der.
 59a
Appendix B
public meeting, residents expressed concern about
traffic near the proposed store. (Id. ¶ 40.) Supervi-
sor Russell summarized the concerns after the meet-
ing, noting that increased traffic was a problem for
all applicants in the property area. (Id. ¶ 41.) Plain-
tiffs promised to pay for any intersection improve-
ments deemed necessary by traffic studies. (Id.
¶ 40.) A traffic study conducted in September 2020
revealed that the proposed store would cause no traf-
fic problems. (Id. ¶ 42.)

In January 2018, after twice revising their site

plans based on meetings with the Town Planning
Department, Plaintiffs filed their first permit appli-
cation with the Town Building Department. (Id.
¶¶ 45–46.) The application was denied in March
2018 because the Town Planning Department did
not approve the site plan. (Id. ¶ 47.) In May 2018,
after revising the site plan for the third time, Plain-
tiffs again applied for site-plan approval. (Id. ¶¶ 50–
51.) The following month, Defendant notified Plain-
tiffs that their plan required a special exception
permit because the planned store was more than
6,000 square feet. (Id. ¶ 52.) Plaintiffs paid a $1,000
fee to submit the application. (Id.) Defendant also
informed Plaintiffs that the Planning Board would
have to conduct a “Market and Municipal Impact
Study,” at Plaintiffs’ expense, to determine adverse
impacts on the local economy. (Id. ¶ 55.)

In July 2018, the owner of the local hardware

store who had agreed to sell it to Plaintiffs, doubled
the purchase price. (Id. ¶ 59.) The store owner had
 60a
Appendix B
retained Martin Finnegman, who was the former
Town attorney. (Id.) Also, in July 2018, Defendant
informed Plaintiffs that the fee for the Market and
Municipal Impact Study would be $30,000. (Id. ¶¶
60.) Three days later, Finnegan wrote to Plaintiffs
and lowered the purchase price for the local hard-
ware store. (Id. ¶ 64.) He “indicat[ed] that [Plain-
tiffs] needed to pay up to ‘eliminate . . . insurmount-
able hurdles’ that [Plaintiffs] were facing with per-
mitting because ‘upgrading [their] status to the ex-
isting local hardware store should shed a favorable
light on [their] application.’” (Id.) “Upon information
and belief,” Plaintiffs allege that Finnegan had per-
sonal knowledge of Defendant’s evaluation of their
permit application while he was renegotiating the
hardware store sale. (Id. ¶ 65.) Plaintiffs rejected
both offers. (Id. ¶ 66.)

In September 2018, Defendant voted to purchase

the property, and in October 2018, the Town Super-
visor called the president of Bridgehampton Nation-
al Bank to ask that they sell the property to Defend-
ant and not Plaintiffs. (Id. ¶¶ 67–68, 75.) After the
bank president refused, the Town Supervisor re-
sponded that he would “never allow anything to be
built on that property.” (Id. ¶ 75.) Later, the Assis-
tant Town Attorney called the bank’s attorney to
pressure it to back out of the contract with Plaintiffs.
(Id. ¶ 78.) Undeterred, Plaintiffs closed on the prop-
erty on November 20, 2018. (Id. ¶ 79.)

In January 2019, Plaintiffs paid the impact study

fee, but, a few weeks later, Defendant enacted a six-
 61a
Appendix B
month moratorium on building permits in a one-mile
geographic area where their property was located.
(Id. ¶¶ 81, 83.) Defendant offered Plaintiffs a refund
for the fee, but Plaintiffs declined. (Id. ¶ 84.) De-
fendant extended the moratorium in August 2019
and again in July 2020, despite each moratorium ap-
plication “lack[ing] evidentiary support.” (Id. ¶¶ 89–
92.) During the moratorium, Defendant granted at
least three waivers to those who applied for them.
(Id. ¶ 94.) Plaintiffs, however, did not apply because
they believed doing so would be futile. (Id.¶ 95.)

In July 2020, Defendant held a public hearing

pursuant to New York Eminent Domain Procedural
Law to determine whether a park on Plaintiffs’ prop-
erty constituted a public use, and in September
2020, Defendant issued formal findings and deter-
minations concluding that it did. (Id. ¶¶ 100–01.)
The same month, Defendant authorized the acquisi-
tion of Plaintiffs’ property for a “passive use park.”
(Id. ¶ 102.)

STANDARD OF REVIEW

To withstand a Rule 12(b)(6) motion to dismiss, a

complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is facially plausi-
ble when the alleged facts allow the court to draw a
“reasonable inference” of a defendant’s liability for
the alleged misconduct. Id. While this standard re-
quires more than a “sheer possibility” of a defend-
 62a
Appendix B
ant’s liability, id., “[i]t is not the Court’s function to
weigh the evidence that might be presented at trial”
on a motion to dismiss, Morris v. Northrop Grum-
man Corp., 37 F. Supp. 2d 556, 565 (E.D.N.Y. 1999).
Instead, “the Court must merely determine whether
the complaint itself is legally sufficient, and, in doing
so, it is well settled that the Court must accept the
factual allegations of the complaint as true.” Id. (ci-
tations omitted).

DISCUSSION

Eminent domain is “‘a fundamental and neces-

sary attribute of sovereignty, superior to all private
property rights’ . . . . [b]ut the Fifth Amendment en-
sures[] this power is not without limits[.]” Goldstein
v. Pataki, 516 F.3d 50, 57 (2d Cir. 2008) (quoting
Rosenthal & Rosenthal, Inc. v. N.Y. State Urban Dev.
Corp., 771 F.2d 44, 45 (2d Cir. 1985)). The Fifth
Amendment provides, in relevant part, “nor shall
private property be taken for public use, without just
compensation.” U.S. Const. amend. V (“Takings
Clause”).2 The Takings Clause guarantees that “one
person’s property may not be taken for the benefit of
another private person without a justifying public
purpose, even though compensation be paid.” Gold-
stein, 516 F.3d at 57 (quoting Thompson v. Consol.
Gas Utils. Corp., 300 U.S. 55, 80 (1937)). That is,
any government taking must be for public use. And,

2 The Supreme Court extended the Takings Clause to the states

vis-à-vis the due process clause of the Fourteenth Amendment.
See Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 241
(1897).
 63a
Appendix B
to be sure, the Government may not “take property
under the mere pretext of a public purpose, when its
actual purpose was to bestow a private benefit.” Kelo
v. City of New London, Conn., 545 U.S. 469, 479
(2005).

Of course, “[t]he primary mechanism for enforcing

the public-use requirement has been the accountabil-
ity of political officials to the electorate, not the scru-
tiny of federal courts.” Goldstein, 516 F.3d at 57.
Thus, while there is “a role for courts to play in re-
viewing a legislature’s judgment of what constitutes
a public use[,]” that role is “‘an extremely narrow
one.’” Haw. Hous. Auth. v. Midkiff, 467 U.S. 229,
240 (1984) (quoting Berman v. Parker, 348 U.S. 26,
32 (1954)). District courts are “not to ‘substitute
[their] judgment for a legislature’s judgment as to
what constitutes a public use ‘unless the use be pal-
pably without reasonable foundation.’” Goldstein,
516 F.3d at 58 (quoting Midkiff, 467 U.S. at 244).
Instead, they are to “patrol[] the borders” of the deci-
sion to condemn private property. Goldstein, 516
F.3d at 63. “If a legislature, state or federal, deter-
mines there are substantial reasons for an exercise
of the taking power, courts must defer to its deter-
mination that the taking will serve a public use.”
Midkiff, 467 U.S. at 244.

Against this backdrop, it is clear that Plaintiffs

have failed to state a claim under the Takings
Clause. Plaintiffs do not allege that their property
was taken to bestow a private benefit. Nor do Plain-
tiffs allege that the Town Board failed to follow the
 64a
Appendix B
procedure provided by New York’s eminent domain
laws or that the Town Board’s findings and determi-
nations concerning whether a park is a “public use”
are unsupported. And, Plaintiffs do not, and could
not, dispute that building a public park is a public
use. See Rindge Co. v. Los Angeles Cnty., 262 U.S.
700, 707–08 (1923) (“[T]he condemnation of lands for
public parks is now universally recognized as a tak-
ing for public use.”).

Nevertheless, Plaintiffs maintain that they need

not allege that their property was taken to bestow a
private benefit because it is sufficient to allege that
the public purpose is pretextual and that the true
purpose is to prevent them from expanding their
business to Southold. (Pl.’s Opp’n at 4–12, ECF No.
36.) Plaintiffs rely upon the Supreme Court’s state-
ment in Kelo that the government may not “take
property under the mere pretext of a public purpose,
when its actual purpose was to bestow a private
benefit.” But that reliance is misplaced. The Second
Circuit made clear in Goldstein that this single sen-
tence should not be interpreted out of the context in
which it was written. The Second Circuit explained
that, in fact, Kelo affirmed the “longstanding policy
of deference to legislative judgments in this field.”
Goldstein, 516 F.3d at 61 (citation omitted). Kelo
posed a “novel” issue because the legislature took
property and gave it to a private party purely for
economic development, and not, as had been blessed
in the past, to remove blight. Id. In other words,
the Supreme Court approved a taking that appeared
to directly violate the Public Use Clause’s prohibi-
 65a
Appendix B
tion on taking from person A to benefit person B. In-
deed, Justice O’Connor stated in her dissent, “pri-
vate property is now vulnerable to being taken and
transferred to another private owner, so long as it
might be upgraded . . . in the process[,]” which
“wash[ed] out any distinction between private and
public use of property.” Kelo, 545 U.S. at 494
(O’Connor, J. dissenting). This apparent expansion
of eminent domain necessitated the “pretext” limita-
tion, one that Justice Kennedy took even further in
his concurrence: “[T]ransfers intended to confer ben-
efits on particular, favored private entities, and with
only incidental or pretextual public benefits, are for-
bidden by the Public Use Clause.” Id. at 490 (Ken-
nedy, J. concurring). Plaintiffs’ implicit argument
that the Supreme Court “sought sub silentio to over-
rule Berman, Midkiff, and over a century of prece-
dent” to make the so-called “pretext doctrine” appli-
cable in situations other than those involving a tak-
ing for purely economic development, is simply in-
correct. Goldstein, 516 F.3d at 62. Courts are still
prohibited from “giv[ing] close scrutiny to the me-
chanics of a taking rationally related to a classic
public use as a means to gauge the purity of the mo-
tives of the various government officials who ap-
proved it.”3 Id. In fact, the majority in Kelo noted

3 Plaintiffs’ reliance on 99 Cents Only Stores v. Lancaster Rede-

velopment Agency is misplaced because, unlike here, the plain-

tiff made a showing that the taking was to bestow a private
benefit. See 237 F. Supp. 2d 1123, 1129 (C.D. Cal. 2001) (“[T]he
evidence is clear beyond dispute that Lancaster’s condemnation
efforts rest on nothing more than the desire to achieve the na-
ked transfer of property from one private property to another.”).
 66a
Appendix B
that though the city was “not confronted with the
need to remove blight . . . their determination that
the area was sufficiently distressed to justify a pro-
gram of economic rejuvenation is entitled” to judicial
deference. Kelo, 546 U.S. at 483.

As in their motion for a preliminary injunction,

Plaintiffs resist this conclusion by relying primarily
upon state court opinions that purport to rely on Ke-
lo. But both cases involve interpretations of state
constitutions, not the Fifth Amendment. For exam-
ple, in Rhode Island Economic Development Corp. v.
The Parking Co., L.P., the Rhode Island supreme
court determined that, because a municipal corpora-
tion gained a significant financial benefit for itself
and its public use rationale was completely unsup-
ported, the municipal corporation had engaged in an
“arbitrary and bad-faith taking of private property
that [the Rhode Island Supreme Court previously]
condemned.” 892 A.2d 87, 106 (R.I. 2006). But the
“arbitrary and bad faith” test is a creature of Rhode
Island eminent domain statutes and the Rhode Is-
land constitution’s definition of public use, not the
Fifth Amendment. See Romeo v. Cranston Redevel-
opment Agency, 254 A.2d 426, 429, 432 & 434 (R.I.
1969) (analyzing whether “Article XXXIIII intended
that the phrase ‘blighted and substandard area’ be

________________________
In addition, the plaintiff challenged the public use determina-
tion itself because the determination that blight needed to be
removed was unsupported. Id. Here, by contrast, there is no
private benefit alleged, and there is no allegation that Defend-
ant’s public use determination is unsupported.
 67a
Appendix B
given the same restrictive interpretation as our pre-
decessors in 1949 gave to the term ‘blighted area’[,]”
answering no, but holding that redevelopment agen-
cies cannot engage in the “arbitrary, capricious or
bad faith taking of private property”). City of Lafa-
yette v. Town of Erie Urban Renewal Authority like-
wise involved the interpretation of a state constitu-
tion, not the Fifth Amendment. See 434 P.3d 746,
750–52 (2018) (applying article XX of the Colorado
constitution and determining whether Lafayette en-
gaged in a bad faith taking).

Plaintiffs also attempt to relitigate the import of

three state court cases that they assert interpret the
Fifth Amendment and argue that “the Supreme
Court assumes that states are interpreting their
constitutions in lockstep with the federal constitu-
tion unless they explicitly say otherwise.” (Pl’s Opp’n
at 7–9 & n.4.) Setting aside that this Court deter-
mined that those cases are nonbinding, Plaintiffs ig-
nore that “[s]tates [] impose ‘public use’ require-
ments that are stricter than the federal baseline.”
Kelo, 545 U.S. at 489 (“We emphasize that nothing
in our opinion precludes any State from placing fur-
ther restrictions on its exercise of the takings pow-
er.”). It would be error to assume then that a state
court’s public use determination is based only on the
federal constitution. Indeed, each of Plaintiffs’ cases
contain indications that the state court was inter-
preting its own constitution, not the Fifth Amend-
ment. For example, in Earth Management, Inc. v.
Heard County, the Georgia supreme court clearly
applied its own constitutional provisions because it
 68a
Appendix B
did not cite the Fifth Amendment nor any federal
court case interpreting it. See 248 Ga. 442, 446–47
(1981) (explaining that the case presented a “point of
impact between two vital competing public interests.
. . . [T]hat the state shall deprive no person of his
property without due process of law and the princi-
ple that no private property shall be taken except for
a public purpose.” (citing only Constitution of Geor-
gia, Art. I, Sec. III, Para I (Code Ann. § 2–301)). In
Pheasant Ridge Associates Ltd. Partnership v. Town
of Burlington, the Massachusetts supreme court
stated: “Recognition in our cases that a bad faith
land taking would be unlawful . . .” 399 Mass. 771,
777 (1987) (emphasis added).4 This statement sug-

4The Massachusetts court primarily relied upon Massachusetts

cases to support the proposition, and then cited two federal
cases that predate Midkiff and Kelo. See Id. at 776 (citing
Southern Pac. Land Co. v. United States, 367 F.2d 161, 162 (9th
Cir. 1966) and United States v. Carmack, 329 U.S. 230 (1946)).
Both of these cases recognized only the possibility that the
Fifth Amendment permitted a bad faith, arbitrary or capricious
review when an official exercises taking power pursuant to del-
egated authority, such as an agency. Of course, since that time,
the Supreme Court has never held that a public use claim per-
mits such an inquiry, and as described above, has strongly sug-
gested that it does not. Plaintiffs’ reliance on Heirs of Guerra v.
United States, 207 F.3d 763 (5th Cir. 2000) and United States v.
58.16 Acres of Land, 478 F.2d 1055 (1973) is similarly unhelp-
ful because neither case considers Midkiff, both cases predate
Kelo, and neither case came from the Second Circuit. Finally,
City of Las Vegas Downtown Redevelopment Agency v. Pappas,
76 P.3d 1 (Nev. 2003), which predates Kelo, relied upon only
Colorado and Oregon case law when it explained that “[c]ourts
may not question the wisdom of how to accomplish the public
purpose absent a showing of fraud or bad faith.” 76 P.3d at 15
& n.69 (citing Port of Umatilla v. Richmond, 321 P.2d 338,
 69a
Appendix B
gests reliance on state, not federal law. Finally, in In
re Opening Private Road for Benefit of O’Reilly—a
case that Plaintiffs argue establishes that the Penn-
sylvania supreme court interpreted the Fifth
Amendment in Middletown Township v. Lands of
Stone—the Pennsylvania Supreme Court does not
clarify whether it relies upon the Fifth Amendment
or its own constitution See 607 Pa. 280, 299 (2010)
(“The constitutions of the United States and Penn-
sylvania mandate that private property can only be
taken to service a public purpose [and] [t]his Court
has maintained that, to satisfy this obligation, the
public must be the primary and paramount benefi-
ciary of the taking” (citations omitted)). The states’
additional restrictions on the public use definition
based upon their own constitutions and precedent
are of no moment here because “[t]his Court’s au-
thority . . . extends only to determining whether [a]
proposed condemnation [is] for a ‘public use’ within
the meaning of the Fifth Amendment to the Federal
Constitution.” Kelo, 545 U.S. at 489.

Ignoring this Court’s footnote in the preliminary

injunction order, Plaintiffs argue that requiring a
plaintiff to plead a private benefit here would allow
the government to use eminent domain to punish po-
litical opponents or unpopular minorities. (Pl’s
Opp’n at 9–10.) They write at length regarding the
story of Willa Bruce, a Black woman, whose success-
________________________
350–51 (Ore. 1958) (applying Oregon law); Denver West Metro.
Dist., 786 P.2d 434, 436 (Colo. Ct. App. Div. 3 1989) (applying
Colorado law); Thornton Dev. Auth. v. Upah, 640 F. Supp. 1071,
1076 (D. Colo. 1986) (applying Colorado law)).
 70a
Appendix B
ful business in Manhattan Beach was taken through
eminent domain for a public park during the era of
Jim Crow. (Id. at 10–12.) While Plaintiffs’ concern
for Black women is admirable, they can take solace
in the fact that the Fourteenth Amendment provides
sufficient protection of their right against a discrim-
inatory state action, including a taking. See 49 WB,
LLC v. Village of Haverstraw, 511 F. App’x 33 (2d
Cir. 2013) (recognizing that a substantive due pro-
cess challenge to a condemnation could be had if a
plaintiff proves it “occurred under circumstances
warranting the labels ‘arbitrary and outrageous’”
which are labels “associated with ‘racial animus’ or
‘fundamental procedural irregularity’” (quoting Na-
tale v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir.
1999)).

Finally, Plaintiffs’ complaint does not present a

“fact pattern . . . in which the circumstances of the
approval process so greatly undermine the basic le-
gitimacy of the outcome reached that a closer objec-
tive scrutiny of the justification offered is required.”
Goldstein, 516 F.3d at 63 (emphasis in original). As
in Goldstein, Plaintiffs “acknowledge[] the . . . ra-
tional relationship to . . . public use[.]” Id. at 62.
And, Plaintiffs’ claim of an impermissible purpose is
primarily based on “one or more of the government
officials [being] actually—and improperly—
motivated[.]” Id. While Plaintiffs allege difficulties
in obtaining a permit, their lack of knowledge about
Defendant’s plan to build a park, other available
land for the park, and a statement from the Town
Supervisor that nothing would be built on Plaintiffs’
 71a
Appendix B
property, those allegations do not amount to any-
thing more than the Town’s desire to leave the plot
of land undeveloped. That is, Plaintiffs’ allegations
do not support an inference of a nefarious, improper
motive necessitating “closer objective scrutiny.” Id.

CONCLUSION

For the foregoing reasons, Defendant’s motion to

dismiss is GRANTED.

SO ORDERED.

Dated: Brooklyn, /s/ LDH _______

New York LASHANN DEARCY HALL
September 30, 2022 United States District
Judge
 72a
Appendix C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X

BEN BRINKMANN, Civil Action No.

HANK BRINKMANN, 2:21-cv-02468
and MATTITUCK 12500
LLC., COMPLAINT FOR
DECLARATORY
Plaintiffs, AND INJUNCTIVE
RELIEF

-against- Jury Trial

Demanded.
TOWN OF SOUTHOLD,
NEW YORK,

Defendant.
------------------------------------X

Plaintiffs BEN BRINKMANN, HANK BRINK-

MANN, and MATTITUCK 12500 LLC., by their attor-
neys, the Institute for Justice, complaining of the de-
fendant, respectfully allege as follows.

Introduction

1. This is a Fifth Amendment lawsuit challenging

the Town of Southold’s attempt to seize private prop-
erty from Plaintiffs (“the Brinkmanns”), via eminent
domain, for the specific purpose of preventing the
Brinkmanns from building and operating a lawful
business that satisfies all zoning and other regulatory
requirements.
 73a
Appendix C
2. The Town’s stated purpose for the taking is the
creation of a small public park, but this is a pretext
concealing the actual purpose. The Town did not con-
template a park, much less engage in any planning
for a park on the Brinkmanns’ property, until after
they applied for a building permit, and after the Town
had exhausted every other regulatory avenue in its
attempt to stop the Brinkmanns from obtaining a
building permit. The Town has made no effort to pur-
chase a larger parcel next door that is for sale and
equally suitable for a small park.

3. Eminent domain must be used for a public use.

And the government’s asserted public use must be the
actual reason for using eminent domain. When, as
here, the government uses eminent domain for an il-
legitimate reason—just to halt a lawful business—
and uses a park as a pretext to justify that taking, the
exercise of eminent domain is unconstitutional.

4. Brinkmann’s Hardware is a Long Island-based,

family-owned business. The Brinkmanns want to
open a new hardware store on an approximately 1.75-
acre parcel (the “Property”) they own along the main
thoroughfare through the Hamlet of Mattituck in
Southold (12500 NYS Route 25 (SCTM# 1000-114.-
11-17)).

5. The Town’s government, however, does not

want Brinkmann’s Hardware in their Town. So, the
Town has used every tool at its disposal to try and
stop the Brinkmanns. The Town has insisted that the
Brinkmanns pay exorbitant fees for impact studies,
but they paid up. The Town has imposed a (selectively
 74a
Appendix C
enforced) moratorium on all new building permits
along the main thoroughfare where the Property is lo-
cated, but the Brinkmanns sued to end the morato-
rium. The Town even tried to induce Bridgehampton
National Bank to breach its contract for the sale of the
Property to the Brinkmanns, with the Town Supervi-
sor vowing that Brinkmann’s Hardware would never
open there.

6. Lacking any legitimate reason to stop the

Brinkmanns from building its new location, which
Plaintiffs are entitled to do as a matter of right on the
commercially zoned Property, the Town has now au-
thorized seizing the Brinkmanns’ land through emi-
nent domain, ostensibly for a park.

7. This is a sham. The Town had never previously

considered putting a park on this land; the only rea-
son it is doing so now is to stop the Brinkmanns from
opening a store on the land it owns.

8. State and federal courts around the country

have recognized that takings are unlawful when the
government’s stated purpose is a mere pretext for
some other, illegitimate purpose. And one such illegit-
imate purpose is to prevent property owners from
making entirely lawful uses of their property.

9. The Brinkmanns filed this lawsuit seeking:

(1) a declaration that the sham public-use determina-
tion for the Town’s pretextual park violates the Fifth
Amendment’s public-use requirement; and (2) an in-
junction preventing the Town from acquiring the
Property using eminent domain based on the invalid
 75a
Appendix C
public-use determination at issue here or any simi-
larly invalid declaration in the future.

Parties

10. Plaintiffs Ben and Hank Brinkmann are resi-

dents of the State of New York.

11. Ben and Hank are the sole owners of Plaintiff

Mattituck 12500 LLC, which is organized and in good
standing under the laws of the State of New York.
Mattituck 12500 LLC owns the Property in the Ham-
let of Mattituck, which is a neighborhood within
Southold, New York. The Property’s address is 12500
NYS Route 25, and it is located at the northeast cor-
ner of New Suffolk Avenue and Route 25 in the Ham-
let of Mattituck (SCTM# 1000-114.-11-17). The Prop-
erty is the subject of this litigation.

12. Defendant Town of Southold is a municipal cor-

poration organized under the laws of the State of New
York.

Venue and Jurisdiction

13. This Court has jurisdiction over this action

pursuant to 28 U.S.C. §§ 1331, 1343, 2201, 2202, and
42 U.S.C. § 1983.

14. Venue lies in this Court pursuant to 28 U.S.C.

§ 1391.
 76a
Appendix C
Factual Allegations

15. Brinkmann’s Hardware is a small, family-

owned and -operated business that has operated on
Long Island since 1976.

16. In 1976, Tony and Pat Brinkmann opened the

first Brinkmann’s Hardware store in Sayville, New
York. At the time, the store was only 1,200 square
feet.

17. Since then, the business has expanded to four

locations on Long Island: Blue Point, Holbrook, Miller
Place, and the original (now flagship) location in
Sayville.

18. Tony and Pat have since retired, and their chil-
dren, Mary, Ben, and Hank now run the stores. (Mary
is not directly involved with the planned Southold
store.)

19. Brinkmann’s Hardware stores are mid-sized

neighborhood hardware stores, the type of which has
been a staple of American main streets for genera-
tions.

20. The Brinkmanns have proven that small hard-

ware stores can still compete with big box stores like
Home Depot. They do this by prioritizing customer
service and convenience. They strive to always build
stores in the downtown area, and on well-exposed cor-
ners (like the Property in Mattituck) whenever possi-
ble. Customers value Brinkmann’s convenient loca-
tions, knowledgeable staff, and competitive prices.
 77a
Appendix C
21. Ben and Hank Brinkmann understand that the
success of their stores is highly dependent on the
stores’ locations. A Home Depot can open anywhere,
and people will drive long distances to get to it, but a
neighborhood hardware store has to be convenient.

22. Ben and Hank know Long Island well, and they
are always on the lookout for possible locations for
new stores, but ideal locations are scarce.

23. In 2011, Ben and Hank discovered a vacant lot

for sale that they thought would be perfect for a new
store. It is 1.7 acres, commercially zoned, undevel-
oped, and located on a main street corner in the Town
of Southold.

24. In 2011, however, the Brinkmanns were not in

a financial position to acquire the Property and build
a new store.

25. In 2011, Bridgehampton National Bank, which

intended to build a new branch on the location, bought
the Property.

26. In 2011, when the Property was for sale, the

Town never made any effort to acquire the Property
and did not have any plans for a park on the Property.

27. The bank never built a new branch on the Prop-

erty because it moved into an existing building in
town that unexpectedly became available.

28. The bank held the Property until 2016, when

Brinkmann’s was able to expand. Ben and Hank
 78a
Appendix C
approached the bank about buying the Property, and
the bank agreed. They contracted to purchase the lot
for $700,000 on December 2, 2016.

29. In 2016, when the bank sold the Property to the

Brinkmanns, the Town made no effort to acquire the
Property and had no plans for a park on the Property.

30. The Brinkmanns’ purchase agreement with

Bridgehampton contained a due-diligence period to
ensure that the Brinkmanns would, in fact, be able
build a store on the location.

31. Upon signing the contract, Ben and Hank im-

mediately started meeting with Town officials and
other stakeholders to move the project forward
through permitting and zoning review, and then to
construction.

32. One of the first things that Ben and Hank did
in 2017 was discuss their plans with the owner of the
one existing hardware store in Mattituck, Rich Or-
lowski. Ben and Hank proposed buying out Orlowski’s
existing business. Orlowski and the Brinkmanns
agreed that, when the new Brinkmann’s location
opened, Orlowski would close his store for a lump sum
payment of the value of his inventory as of the date
he closed his business (believed to be approximately
$350,000), and that he would be hired as the manager
of the new Brinkmann’s location.

33. In April 2017, the Brinkmanns engaged a local

architect, Nemschick Silverman Architects P.C., to
conduct a feasibility study and draw up site plans.
 79a
Appendix C
34. The contract provided that the new hardware
store should “match the surrounding neighborhood
design aesthetic.”

35. The Brinkmanns met with the Southold Town

Planning Department in May 2017, to inform them of
their plans for a new location.

36. During the May 2017 meeting with the Plan-

ning Department, Southold planning officials did not
state that the Town had plans for a public park on the
Property.

37. Planning officials did not state during the May

2017 meeting that the Town had plans for a public
park on the Property because the Town did not have
any such plans.

38. The Brinkmanns also held two meetings with

the Mattituck-Laurel Civic Association. First, they
met with just the leadership of the Association in July
2017, and Orlowski attended that meeting to help in-
troduce the plan and to demonstrate that he was
working with the Brinkmanns. Then they held an
open meeting in September 2017.

39. The open meeting was attended by Southold

Town Supervisor Scott Russell and at least two coun-
cilmembers. At the meeting, some residents ex-
pressed concern about the impact that the proposed
store would have on traffic at the intersection.

40. At the meeting, Ben and Hank Brinkmann

promised that they would pay for whatever
 80a
Appendix C
intersection improvements might be deemed neces-
sary by traffic studies.

41. After the meeting, Supervisor Scott Russell

wrote: “I give credit to the applicant for his willing-
ness to walk into the lion’s den. From my perspective,
a great deal of concern is the impact on traffic and the
overall impact on safety. That is an over-riding con-
cern on all applications in that area. That is very un-
derstandable.”

42. A traffic study was ultimately completed in

September 2020, and nothing in the study indicated
that the proposed hardware store would cause traffic
problems.

43. At no point during the July or September 2017

meetings with the Mattituck-Laurel Civic Association
did either Town Supervisor Russell or anyone else
state that the proposed Brinkmann’s location on the
Property conflicted with existing Town plans to build
a public park on the Property.

44. No one stated during the July or September

2017 meetings that the proposed Brinkmann’s loca-
tion conflicted with existing Town plans to build a
public park on the Property because no such plans ex-
isted.

45. The Brinkmanns shared the site plans with the

Town Planning Department prior to submitting a for-
mal application. The Plans went through two rounds
of revisions based on those discussions.
 81a
Appendix C
46. In January 2018, the Brinkmanns filed their
first permit application with the Town Building De-
partment. This application contained the third ver-
sion of the site plan, which had been revised based on
prior discussions with Town officials. See Southold
Code § 144-8.

47. That application was denied by the Town

Building Department in March 2018, because no site
plan had been approved by the Planning Department.

48. In denying the January 2018 permit applica-

tion, planning officials did not state that the proposed
Brinkmann’s location conflicted with existing Town
plans to build a public park on the Property.

49. In denying the January 2018 permit applica-

tion, planning officials did not state that the proposed
Brinkmann’s location conflicted with existing Town
plans for a public park on the Property because no
such plans existed.

50. In April 2018, the architects completed their

designs for the Property depicting a 12,000 square-
foot hardware store, a 3,000 square-foot paint store,
5,000 square feet of storage, and 80 parking spaces.
As requested by the Planning Department, this ver-
sion of the plan depicted the buildings abutting the
main road, with parking behind.

51. In May 2018, the Brinkmanns and the archi-

tects attended a preliminary planning meeting with
the town Planning Department and applied for site-
plan approval.
 82a
Appendix C
52. In June 2018, the Town notified the Brink-
manns that the project required a “Special Exception
Permit,” with a $1,000 application fee, because the
planned store would be over 6,000 square feet.

53. The Town’s ordinances contain a lengthy list of

objective requirements for stores over 6,000 square
feet. These requirements address issues including
setbacks, architectural style, building materials,
parking, and signage. See § 280-45(B)(10).

54. The Brinkmanns’ plans addressed all of these

requirements, and they were prepared to modify their
plans further based on feedback from the Planning
Board.

55. Another requirement to build a store over 6,000

square feet is that the Planning Board is required to
conduct a “Market and Municipal Impact Study,” to
determine that the proposed store will not have an ad-
verse impact on various aspects of the local economy.
§ 280-45(B)(10)(b). In June 2018, the Town notified
the Brinkmanns that the project required such a
study, with a fee to be determined.

56. In notifying the Brinkmanns in June 2018 that

they needed to complete a “Market and Municipal Im-
pact Study,” planning officials did not notify the
Brinkmanns that their proposed hardware store con-
flicted with existing Town plans for a public park on
the Property.

57. In notifying the Brinkmanns in June 2018

about the “Market and Municipal Impact Study,”
 83a
Appendix C
planning officials did not state that the proposed
Brinkmann’s location conflicted with existing Town
plans for a public park on the Property because no
such plans existed.

58. In the summer of 2018, Orlowski changed his

attorney, hiring the former Town attorney, Martin
Finnegan.

59. Mr. Finnegan contacted the Brinkmanns on

July 10, 2018, to inform them that he represented Mr.
Orlowski. And on July 24, 2018, Finnegan again con-
tacted the Brinkmanns to inform them that Orlowski
was “renegotiating the agreement” and demanding
double the price, $700,000, to buy out Orlowski’s
hardware store.

60. On July 31, 2018, the Town notified the Brink-

manns that the fee for the Impact Study would be
$30,000.

61. In notifying the Brinkmanns in July 2018 that

the study fee would be $30,000, planning officials did
not inform the Brinkmanns that their proposed hard-
ware store conflicted with existing Town plans for a
public park on the Property.

62. In notifying the Brinkmanns in July 2018 that

the study fee would be $30,000, planning officials did
not inform the Brinkmanns that their proposed hard-
ware store conflicted with existing Town plans for a
public park on the Property, because no such plans
existed.
 84a
Appendix C
63. By this time, it was becoming increasingly
clear to Ben and Hank that the Town was deeply op-
posed to them opening the new store.

64. Three days after the Town informed the Brink-

manns they would have to pay the Impact Study fee,
Mr. Finnegan again wrote to the Brinkmanns on Au-
gust 2, 2018, and told them Orlowski had reduced the
demand for his hardware store business to $450,000,
indicating that the Brinkmanns needed to pay up to
“eliminate . . . insurmountable hurdles” that the
Brinkmanns were facing with permitting because
“upgrading your status to the existing local hardware
store should shed a favorable light on your applica-
tion.”

65. Upon information and belief, Mr. Finnegan,

the former Town Attorney, had personal knowledge of
the Town’s evaluation of the Brinkmanns’ permit ap-
plication at the time he was representing Mr. Or-
lowski and renegotiating the sale of Orlowski’s hard-
ware store in Southold.

66. The Brinkmanns rejected both offers that Mr.

Finnegan presented: the $700,000 offer for Orlowski’s
hardware store business that Finnegan made on July
24, 2018, and the offer Finnegan made on August 2,
2018, for the reduced amount of $450,000, which Fin-
negan communicated alongside a reference to how ac-
ceptance may affect the Brinkmanns’ then-pending
permit application with the Town.

67. In September 2018, the Town Board voted to

try to buy the Property from the Brinkmanns.
 85a
Appendix C
68. The Town voted to try to purchase the Property
in September 2018 for the sole and specific purpose of
stopping the Brinkmanns from building and operat-
ing their proposed location at the Property.

69. Prior to the September 2018 vote to try to pur-

chase the Property, the Town had not engaged in any
planning for a public park on the Property; had not
tasked any Town committee with evaluating the pos-
sibility of a new public park on the Property; had not
tasked any Town planning staff with evaluating the
possibility of a new public park on the Property; had
not conducted any financial analyses of creating a
new park on the Property; had not evaluated any al-
ternative location for a new public park somewhere
other than the Property (including, for example, the
possibility of purchasing the undeveloped land for
sale next to the Property); had not surveyed Town cit-
izens or held stakeholder meetings with citizens
about purchasing the Property for a new park; had
not conducted any geotechnical survey of the Property
to determine its suitability for a public park; had not
held any public hearings about creating a new public
park on the Property; had not retained any outside
consultants to evaluate the Property as a location for
a new public park; and had not retained any archi-
tects, contractors, traffic engineers, or landscapers to
evaluate the Property or design and build a new park
on the Property.

70. No public records indicate that the Town was

previously considering that land for a park until the
Brinkmanns decided to open a hardware store there.
 86a
Appendix C
71. The Town never attempted to purchase the
Property when it was for sale in 2011.

72. The Town never attempted to purchase the

Property from its 2011 buyer, Bridgehampton Na-
tional Bank, until after the Brinkmanns had already
contracted to purchase the property and had applied
for a permit to build their store.

73. The Town did not approach Bridgehampton

National Bank to purchase the Property after the
bank decided not to develop it.

74. There is also an undeveloped plot of land next

door to the Property that, at the time of this filing, is
for sale and which would be equally suitable for a
park, but which the Town has never considered ac-
quiring.

75. In October 2018, the Town took more drastic

measures, attempting to interfere with the Brink-
manns’ purchase contract for the vacant lot. Scott
Russell, the Southold Town Supervisor, called the
president of Bridgehampton National Bank, Kevin
O’Connor. Russell pressured O’Connor not to sell the
property to the Brinkmanns. He suggested that
O’Connor instead sell to the Town. O’Connor re-
sponded that he would proceed with the sale as con-
tracted, to which Russell responded, “I will never al-
low anything to be built on that property.”

76. When Town Supervisor Russell called the pres-

ident of Bridgehampton National Bank to demand
that the bank breach its real-estate contract with the
 87a
Appendix C
Brinkmanns and not close on the Property, he did not
state that the Town had plans to build a park on the
property because there were no Town plans for a park
and the Town had no actual desire for a Park. The
Town’s only objective was to stop the Brinkmanns.

77. O’Connor called Ben and Hank to tell them

about this conversation with the Town Supervisor.

78. Later, the Assistant Town Attorney, Damon

Hagan, called Bridgehampton Bank’s attorney, Vin-
cent Candurra, and similarly pressured Bridgehamp-
ton to back out of the sale contract with the Brink-
manns.

79. Ben and Hank were undeterred, and they

closed on the Property on November 20, 2018.

80. At the closing, Candurra told the Brinkmanns

about the call he received from Hagan. Candurra told
the Brinkmanns he was “put off” by the threatening
and inappropriate nature of the call.

81. In January 2019, the Brinkmanns paid the

Town $30,000 for the impact study that the Town’s
Planning Board required.

82. The pending permit application required no

zoning changes, no waivers, and no discretionary var-
iances. The plans for the store complied with all of the
other requirements for a square footage exemption,
and Ben and Hank believed that by paying the fee for
the impact study, they could finally force the Town to
act on their application.
 88a
Appendix C
83. A few weeks after the Brinkmanns paid the
$30,000 impact-study fee, the Town enacted a six-
month moratorium on any new building permits
along the main thoroughfare where the Property is lo-
cated. The moratorium was limited in geographic
scope: It covered only a one-mile stretch of road, and
it was centered on the Brinkmanns’ property.

84. The Town also offered to refund the $30,000,

but the Brinkmanns refused, knowing that accepting
the refund would make their application incomplete.

85. During the six weeks between the time the

Brinkmanns paid the Town $30,000 for the market
impact study on January 9, 2019, and when the Town
enacted the permit moratorium on February 26, 2019,
the Town failed to perform any work on the market
study despite it being legally required to complete
that study within 90 days, Town of Southold City
Code § 280-45(B)(10)(b). Nor did the Town retain the
outside consultant it had previously identified in July
2018 “to conduct this study” (Nelson, Pope, and
Voorhis), when demanding that the Brinkmanns pay
a fee of $30,000 “to cover the cost of this study.”

86. Notwithstanding that the Town was required

by law to complete the impact study within 90 days,
the Town has, to date, taken no action to even begin
the study.

87. The Town’s permit moratorium concerned only

the approval and issuance of permits; it did not excuse
the Town from processing the Brinkmanns’ applica-
tion, nor did the Town’s moratorium waive any of the
 89a
Appendix C
Town’s legal obligations related to the deadlines by
which it had to complete the market study it required
from the Brinkmanns.

88. Exasperated, the Brinkmanns sued the Town

in state court in May of 2019, challenging the morato-
rium. That litigation is ongoing.

89. The Town has twice extended the moratorium,

first in August 2019, then in July 2020.

90. Each time it sought to extend the permit mor-

atorium, the Town submitted a “local law” referral to
the Suffolk County Planning Commission. In re-
sponse, Suffolk County requested evidentiary support
for extending the moratorium and the Town failed to
provide it.

91. When the Town made a “local law” referral to

Suffolk County concerning the first extension of its
permit moratorium, the County’s staff recommended
“disapproval” because the Town’s bare assertions for
needing the moratorium lacked evidentiary support.
Rather than reject the referral, Suffolk County’s Plan-
ning Commission deemed it “incomplete” and re-
quested that the Town provide traffic studies and rel-
evant sections of the Town’s comprehensive plan. The
Town ignored this request.

92. When the Town sought a second extension of

its moratorium and sent a “local law” referral to the
Suffolk County Planning Commission, the County
produced a report noting that the Town of Southold
never provided the County with the supporting
 90a
Appendix C
evidence it requested for the Town’s first extension.
Thus, for this second extension, Suffolk County staff
again recommended that the moratorium be “disap-
proved” because there were no findings that (1) “indi-
cate how serious or urgent these circumstances are”;
(2) “there are no other alternatives, less burdensome
on property rights than the moratorium”; and
(3) “there are no findings that indicate why the exist-
ing land use ordinances are not adequate.”

93. During this time, the Town has selectively en-

forced the moratorium, granting building permits to
parties other than the Brinkmanns.

94. Upon information and belief, the Town has

granted at least three waivers to the moratorium:
(1) Wickham Road LLC, owner of 12800 Main Road,
Matittuck, received a waiver to obtain a variance to
turn a vacant building into offices; (2) Abigail A.
Wickham as agent for 11155 Main Road LLC, prop-
erty location at 11155 Route 25, Mattituck, received a
waiver for internal renovations and a handicap ramp;
and (3) Patricia C. Moore as agent for Love Lane Vil-
lage LLC, property location at 13650 Main Road,
Mattituck, received a waiver for interior and exterior
work including the addition of solar panels.

95. The Brinkmanns did not apply for a waiver to

the moratorium because they believed it would have
been futile, as the moratorium was clearly targeted at
their proposed hardware store.

96. The building moratorium was specifically in-

tended to stop the Brinkmanns, as it was imposed
 91a
Appendix C
shortly after their application became complete, and
it has been selectively waived for parties other than
the Brinkmanns despite those properties being lo-
cated on the same main thoroughfare where the
Brinkmanns’ Property is located.

97. The fact that applications were being processed

during the moratorium further emphasizes that the
moratorium was designed to stop the Brinkmanns.
Applications were being processed during the morato-
rium, but not the Brinkmanns’ application. This is de-
spite the fact that the Brinkmanns submitted a com-
plete application, paid $30,000 for an impact-study
fee, and the Town was required to complete its evalu-
ation of “undue adverse impact” within 90 days from
the submission of that fee, and also vote on that de-
termination 30 days after conducting that evaluation.
Town of Southold City Code § 280-45(B)(10)(b). In
sum, the Town was required to act on the Brink-
manns’ application and it did not, even though it
acted on other applications.

98. The vacant property next door remains for sale,

and the Town did not consider that land’s suitability
for a park.

99. On June 22, 2020, the trial court in the Brink-

manns’ state court lawsuit denied the Town’s motion
to dismiss, allowing their challenge to the morato-
rium to proceed.

100. Soon thereafter, in July 2020, the Town held a

public legislative hearing, as required by New York
law, to determine whether a park on the Property
 92a
Appendix C
would constitute a public use for purposes of eminent
domain. N.Y. Em. Dom. Proc. Law § 203.

101. In September 2020, the Town issued its formal

“findings and determinations,” in which the Town
concluded that acquiring the Brinkmanns’ land for a
park would indeed be a public use. Id. at § 204; see
also Resolutions 2020-571 & 2020-572,
https://perma.cc/698V-JA3B.

102. In September 2020, the Town authorized the

acquisition of the Brinkmanns’ Property via eminent
domain, for the ostensible purpose of building a “pas-
sive use park,” i.e., a park with no significant facilities
or improvements.

103. On September 19, 2020, in a guest column in

the Suffolk Times, Southold Town Board member Sa-
rah Nappa confirmed that the Town’s true objective
in using eminent domain was not to establish a park,
but rather to stop the Brinkmanns from building a
hardware store on their land.

104. Ms. Nappa wrote: “I can’t help but wonder, if

this application had been filed by anyone but an out-
sider, if this business was owned and operated by a
member of the ‘old boys club,’ would the town still be
seizing their private property? The use of eminent do-
main by Southold Town to take private property from
an owner because it doesn’t like the family or their
business model is a dangerous precedent to set.”
 93a
Appendix C
Injury to Plaintiffs

105. The Town’s declaration of public use has in-

jured Plaintiffs Ben and Hank Brinkmann, and 12500
Mattituck LLC (through which they own the prop-
erty) because, under the Takings Clause of the Fifth
Amendment, the public-use determination is a sham,
the asserted public park justification for the taking of
Plaintiffs’ property is a pretext, and this unconstitu-
tional public-use determination is the basis of the
Town’s intended condemnation of the Property.

106. Unless Plaintiffs invalidate the pretextual pub-

lic-use determination in federal court, they will lose
the Property to the Town in a state-court condemna-
tion proceeding.

107. Plaintiffs are further injured in that, under

New York law, they would not be permitted to raise a
public-use defense in that state-court condemnation
proceeding. N.Y. Em. Dom. Proc. Law § 204.

108. Plaintiffs are further injured in that their only

opportunity to challenge public use in the New York
courts was by filing an affirmative lawsuit challeng-
ing the sufficiency of the administrative record from
the public hearing in supporting the Town’s legisla-
tive Determination and Findings of public use. The
deadline to file such an action is thirty days after the
determination, which has long since expired. N.Y.
Em. Dom. Proc. Law § 207(A).

109. Plaintiffs are further injured in that, even if the

30-day statute of limitations had not already expired,
 94a
Appendix C
New York’s Eminent Domain Procedure Law author-
izes state courts to review only the sufficiency of the
administrative record. N.Y. Em. Dom. Proc. Law §
207. Discovery is not allowed. Yet, because Plaintiffs
allege that the asserted justifications on the face of
the administrative record are a sham, the only way
for them to establish that the public-use determina-
tion was pretextual and unconstitutional is by engag-
ing in discovery to prove the actual illegitimate pur-
pose. In short, the specific Fifth Amendment claim
that Plaintiffs have brought in federal court is a claim
that they could never have brought in state court.

110. For the purposes of New York state law and the
state courts of New York, the taking of the Property
for a public park has been conclusively deemed a pub-
lic use. Under the Eminent Domain Procedure Law,
Plaintiffs have no ability to file an affirmative lawsuit
in state court asserting their rights under the Fifth
Amendment and they are not permitted to raise the
Fifth Amendment as a defense in any state-court law-
suit that the Town files against them to obtain legal
title to the Property and determine just compensation
for Plaintiffs. N.Y. Em. Dom. Proc. Law §§ 204,
207(A), 208.

111. A property owner whose land is the subject of a

legislative public use determination in New York has
a ripe claim in federal court under the Fifth Amend-
ment and 28 U.S.C. § 1983. See Goldstein v. Pataki,
516 F.3d 50, 54 n.2 (2d Cir. 2008).

112. Now that the Brinkmanns have paid all of the

required fees and have demonstrated that they will
 95a
Appendix C
not be deterred by the building moratorium, eminent
domain is the Town’s best prospect of stopping the
Brinkmanns, which Town Supervisor Scott Russell
has promised he will do.

113. Although the Town has not yet granted—or

even acted on—the Brinkmanns’ application for a
square footage exemption, the Brinkmanns’ plans
meet all of the requirements for an exemption, and
they are willing to modify the plans to the extent nec-
essary, should the Planning Board determine that
any of the specified requirements are not satisfied by
the current plans.

114. The Town has taken concrete steps towards

taking the Brinkmanns’ property, and this lawsuit is
the Brinkmanns’ only opportunity to litigate this fed-
eral constitutional issue: whether the Fifth Amend-
ment allows a taking whose stated purpose is a mere
pretext for preventing people from making a lawful
use of their property.

115. The Brinkmanns are also injured by the public

use determination because, as long as eminent do-
main appears to be a viable option for the Town, the
Brinkmanns will never be granted a permit or be al-
lowed to start building its store. And the longer this
saga drags on, the more money they will have to
spend and the more capital they will have tied up, not
earning any return.

116. The Brinkmanns are also injured by the deter-

mination that the taking of their land is for a public
use and the cloud of pending condemnation that it
 96a
Appendix C
places over their property, which also puts any invest-
ments into the Property in jeopardy.

Count One: Fifth Amendment Pretextual

Taking

117. All previous allegations are reincorporated

here as if set out in full.

118. The Fifth Amendment’s Takings Clause pro-

vides that “private property [shall not] be taken for
public use, without just compensation.”

119. A taking is not for a legitimate public use when

the government’s stated purpose is a mere pretext for
some other, illegitimate purpose.

120. One such illegitimate purpose is to stop prop-

erty owners from putting their property to uses that
are entirely lawful and consistent with existing regu-
lations.

121. When the circumstances surrounding a con-

demnation raise a strong inference that the govern-
ment is acting for an improper purpose, searching ju-
dicial scrutiny is required.

122. The Town of Southold had never previously

considered the Brinkmanns’ land for a park. It made
no effort to acquire the land when it was for sale in
2011, nor did it approach the bank about buying it un-
til after the Brinkmanns were under contract and had
applied to build their hardware store.
 97a
Appendix C
123. None of the Town’s long-term planning docu-
ments discussed turning the Brinkmanns’ property
into a park.

124. The Town’s proposed park is nothing but a pre-

text to stop the Brinkmanns from opening a lawful
business on their own land. As such, this taking does
not satisfy the public use requirement of the Fifth
Amendment.

Relief Requested

A. A declaratory judgment by the Court that the

Town of Southold’s stated purpose of acquiring the
Plaintiffs’ property to open a public park is a mere
pretext for the illegitimate objective of halting an en-
tirely lawful use of property by its owners, and that
such a taking violates the Fifth Amendment to the
United States Constitution;

B. Permanent injunctive relief prohibiting De-

fendant Town of Southold from acquiring the Prop-
erty using eminent domain based on the invalid pub-
lic-use determination at issue here or any similarly
invalid declaration in the future;

C. An award of attorneys’ fees, costs, and ex-

penses in this action;

D. An award of nominal damages in the amount of

$1 to each Plaintiff; and

E. Any other legal or equitable relief to which

Plaintiffs may show themselves to be justly entitled.
 98a
Appendix C
Dated this 4th day of May, 2021.

Respectfully Submitted,

/s/ William Aronin

William Aronin
(EDNY No. WA0685)
Jeffrey Redfern*
INSTITUTE FOR JUSTICE
901 N. Glebe Road, Suite 900
Arlington, VA 22203
Phone: (703) 682-9320
Fax: (703) 682-9321
Email: [email protected]
Email: [email protected]

Arif Panju*
INSTITUTE FOR JUSTICE
816 Congress Ave, Suite 960
Austin, TX 78701
Phone: (512) 480-5936
Fax: (512) 480-5937
Email: [email protected]

Counsel for Plaintiffs

* Pro Hac Vice Applications
forthcoming