Ben Brinkmann, et al. v. Town of Southold, New York

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 complaint alleges “facts sufficient to support a finding” that Respondent Town of Southold’s “decision to create 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 Constitution 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 “adhere[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,” including Connecticut, meaning that the Takings Clause rights of Connecticut citizens now depend entirely on whether the case is in state or federal court. As framed by the majority below, the question presented—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.”