Petition asks Supremes to strike city scheme to foil family hardware business

A fight over a city’s attempt to foil the operations of a family business is headed to the Supreme Court, where the justices are being asked to strike a city’s move to confiscate the family’s land for an unplanned park that won’t have any improvements.

The park, according to the appeal on behalf of Ben and Hank Brinkmann of Southold, New York, is just a ruse to cover the city’s “true purpose” of stopping their business, according to the Institute for Justice, which has taken up the family’s fight.

The ruling from the 2nd U.S. Circuit Court of Appeals said the family could not stop city officials from confiscating their land for a “passive park,” which is undeveloped property that city officials apparently intend to leave that way.

“Ben and Hank Brinkmann bought undeveloped property in Southold for a new location of a family hardware store their parents started in the 1970s. But Southold’s inner circle apparently didn’t want the Brinkmanns’ business in town. So they began a campaign to wrap the new hardware store in red tape with dizzying permitting requirements, abrupt regulatory changes, and delays. But Ben and Hank persevered, jumping through every hoop,” the IJ explained.

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But, “Unable to thwart the Brinkmanns’ perfectly legal business, the town decided to use eminent domain to seize the property for a so-called ‘passive park,’ meaning a park that won’t be improved. There is no dispute that the park was dreamed up on the fly simply to stop the Brinkmanns. Evidence shows none of the planning normally associated with parks, and the town never mentioned the park to the Brinkmanns while they ran their multiyear permitting obstacle course,” the IJ pointed out.

The family challenged the use of eminent domain to take their land because the park was a pretext, but the judges allowed it.

“This is about more than our family business,” Hank Brinkmann said in a statement released through his lawyers. “Our case is about defending the right of everyone’s family business to stay in business when they play by the rules. We look forward to asking the U.S. Supreme Court to stop eminent domain abuse.”

Two judges in the majority admitted there was no dispute that “the decision to create the park was a pretext for defeating the Brinkmanns’ commercial use.”

But they said courts “do not inquire into alleged pretexts and motives.”

One judge, dissenting, warned, the ruling was “gutting an important constitutional protection for property.”

In fact, “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 dissent charges.

The ruling also creates uncertainty regarding eminent domain all across the nation.

“The federal courts have too often treated property rights as second class citizens, but the takings clause is written right there in the Fifth Amendment,” said Institute for Justice Attorney Jeff Redfern. “The Supreme Court has in recent years paid careful attention to the plain language of the Constitution and this case is an opportunity to be clear that eminent domain cannot be used in bad faith to stop lawful businesses.”

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