Supreme Court Refuses to Hear "Passive Park" Public Use Property Rights Case

While I am eager for the Court to take another public use case, I am actually happy the justices chose to reject this one. Its unusual facts made it a poor vehicle for revisiting Kelo v. City of New London.

(NA)

Today, the Supreme Court refused to review the case of Brinkmann v. Town of Southold, which raised an unusual and extremely difficult issue about the meaning of "public use" in the Takings Clause of the Fifth Amendment. Three justices (Thomas, Gorsuch, and Kavanaugh) wanted to take the case, but four votes are necessary to grant a petition for writ of certiorari. I summarized the key issue in the case in a previous post about it (in part by quoting takings litigator Robert Thomas):

The Takings Clause of the Fifth Amendment says the government may only "take" private property for a "public use." In cases like Berman v. Parker and Kelo v. City of New London, the Supreme Court has ruled (wrongly, in my view) that almost any potential benefit to the public qualifies as a "public use." Thus, in Kelo the Court upheld the condemnation of homes for purposes of promoting privately owned "economic development…"

But the Kelo majority also indicated that a taking can still be invalidated if the government tries to "take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit…."

How do courts determine whether a taking is pretextual? Since Kelo, lower-court decisions on that issue have been all over the map. In Chapter 7 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, I identified at least five different approaches to this issue adopted by state and lower federal courts since Kelo….

Most pretextual takings cases deal with situations where the government condemns property for transfer to a private party. But in Brinkmann v. Town of Southold, the US Court of Appeals for the Second Circuit addressed a case where a condemnation for transfer to public ownership might still be pretextual, because the official rationale was a pretty obvious smokescreen for a different motive….

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

The Brinkmanns wanted to build a big box hardware store on a 1.7 acre vacant parcel. The usual objections from area residents and the Town itself appeared…  Even a failed attempt by the Town to buy the property itself before the Brinkmanns closed their purchase.

When all those didn't succeed in stopping the development, the Town began proceedings to forcibly acquire the land by eminent domain. What for, you ask? A public park. More precisely, a "passive use park." What's that, you ask? It isn't what you might think make a typical public park. Things like public facilities, art installations, walking trails, recreational and entertainment spots…. No, this was to have none of those things, it was to be "a park with no significant facilities or improvements," also known as a big open, empty field….

Next step was a federal court section 1983 action by the Brinkmanns, "alleging a pretextual taking in violation of the Takings Clause of the Fifth Amendment…." The Town may have claimed that the taking was for a "classic" public use…., but the Town's actual reason, the Brinkmanns alleged, was what we call a "spite taking"—the Town didn't like the use we're making or going to make of our property, so decided to take it from us. This was the real motivation to take our property, and that's not a public use, according to the complaint. The district court wasn't having any of it, and dismissed for failure to state a claim.

A divided panel of the Second Circuit affirmed…..

As the opinion put it, "Plaintiffs have not pointed to any Town purpose that violates the Takings Clause…"

In short (and this is our characterization, not the court's), the Fifth Amendment contains a Public Use Clause, not a "Good Motivation Clause…"

I would very much like the Supreme Court to take another public use case, and overrule Kelo and Berman, or at least cut back on those badly flawed precedents. But, for reasons noted in my earlier post, I think this case would have been a bad vehicle for reviewing these issues:

Having written a book and numerous articles on public use issues, I rarely run across a public use case where I'm unsure what the right outcome should be. But this is one of those rare times.

Pretextual takings doctrine is a mess generally. But I think it can legitimately be used to strike down a variety of takings for transfer to private parties; indeed, I believe most such takings are unconstitutional even aside from the pretextual motives, because I support the "narrow" view of "public use" under which the government may only take property for publicly owned facilities or private ones that have a legal duty to serve the entire public.

In most situations, the narrow view is satisfied when the government takes property for public ownership…. But this case is different from most takings for public ownership because the government isn't actually using the condemned property for anything. As Judge Menashi puts it [in his dissenting opinion], the supposed "public park" is actually "fake."

This opens up the possibility there can be public ownership without public use. To be sure, there can sometimes be "use" even if the government doesn't build anything on the land it takes…. But there is no such use here, not even a "passive" one. The only goal is to block the Brinkmanns' plan to build a hardware store, not to use the land for any affirmative purpose.

Perhaps such blocking can still be a "use." But the issue is a difficult and murky one…..

Pretextual takings jurisprudence has long been a mess, and at least four Supreme Court justices have expressed interest in clearing it up, and perhaps overruling or limiting Kelo in the process.

I very much hope the Supreme Court does clean up the mess and—better still—overrules Kelo. But this case is not a good vehicle for that.

Unlike Kelo, it does not address the issue of condemnations for transfer to private parties.vIt instead deals with the unusual situation where the government retains the condemned property but has no desire to do anything with it other than block a private use it objects to.  The issue is an extremely difficult one. And even if the Court resolves this hard question correctly, doing so would not do much to improve public use doctrine more generally.

Legal issues aside, I think the Brinkmanns were victims of an egregious abuse of government power here. Even if it doesn't violate the Public Use Clause to do so, local governments shouldn't use the "despotic power" of eminent domain merely to eliminate uses of property neighbors dislike. It's even worse if they end up turning a potentially valuable land use into an empty lot of no value to anyone. Calling it a "passive park" doesn't make that right. But not every injustice makes a good Supreme Court case. Sadly, this is one of the many that doesn't.

NOTE: The Brinkmanns are represented by the Institute for Justice, with which I have worked on other property rights issues over the years. I have no involvement in this case.

Comments

[Stephen Lathrop]

Somin — Leave the lot alone. Do absolutely nothing. Let visitors come and go, or not. Do nothing to assist visitors, but enforce the leaving-alone policy with regard to what they do.

After ten of years or less the ecology of the area will have measurably improved. If left alone for multi-hundreds of years, the improvements will continue for however long the leaving-alone continues.

Ecological benefits from the leaving alone will extend bit-by-bit into property owned by those who adjoin the lot. But almost immediately, ecological benefits will occur in quite distant locations, even a continent away, from support for bird migrations, and perhaps from insect propagation, and propagation of fish eggs, and amphibians.

The notion that land management is beneficial, and leaving land alone is pernicious, is one of the worst errors in the canon of modern public policy. Somin’s advocacy demonstrates exactly the pernicious tendency John Muir had in mind when he said, “Nothing dollarable is safe.”

A program to do systematically, again and again, what Somin objects to here, would be one of the wisest public policy changes ever enacted.

[gormadoc]

Common environmentalist error. "Doing nothing" with land is actually ruinous to much of the native habitat near urban centers in the US. The issue is that much of it was actively and intentionally managed by the natives, relying on natural processes that simply don't exist or are untenable now.

For instance, the plains must be routinely grazed, mowed, or burnt in order to replicate previous conditions. If that doesn't happen you start seeing fragile red cedar-dominated forests. When it is near urban land it is nearly impossible to fix after the fact because extreme weed control is distasteful or unsafe. Even after everything the weeds will come back because the city protects them.

[Stephen Lathrop]

gormadoc — You have bought a bill of goods. And a romanticized interpretation of Indian environmental management.

Despite a bit of truth in what you say, you have been in an ecological kindergarten, headed by a teacher with alternative pedagogical priorities which proved distracting.

Of course leaving happenstance lots to natural processes will not restore vast domains to optimal ecological condition. Of course ecological domains will prove dynamic, and the very notion of optimal ecological status remains mostly a mistaken presumption. At best, ecological states must be defined on the basis of dynamic ecological principles—principles related to profusion, genetic diversity, natural selection—and implicating also external variables, such as climate change and human utilization of natural resources.

What all that ignores, however, is that even weedy, insect-infested, trash-bag littered, blighted urban and suburban landscapes, usually begin with an ecological advantage over every dollarable use they would otherwise be put to. And if left alone, those initial conditions will at least somewhat sort themselves out, and trend toward better ecological health. Improvement can happen much quicker than you probably suppose, while remaining part of a process necessarily slow to complete.

The eastern part of the nation abounds with sites formerly in extensive industrial use, which have in little more than a century returned not to a prior wilderness condition, but to ecologically more-healthy variants. Characteristically, the sites soonest exploited, and soonest abandoned, today feature some of the best thriving and most ecologically healthy habitats. Millponds first developed in the 1600s can feature astonishing ecological health and variability today.

Over time, newly-renewed natural processes converge toward recognizably classic patterns, defined by the principles of ecological succession. Read up on hydrarch succession, and xerarch succession, for instance.

Note also, the process of ecological degradation can be slow, fast, or, too often, nearly instantaneous. The process of full recovery necessarily takes place slowly. If a virgin forest gets clear cut, it will be centuries before anything but the first half of ecologically restorative processes comes into play. Those involve regeneration; the others—involving decay and replacement—do not even get fully started until regeneration has had centuries to take hold.

To be fully ecologically supportive, all the processes—regeneration, decay, and replacement—must be actively under way together. All the different stages feature characteristic ecological communities. Those communities all interact. But they are unlikely to be found all together and all interacting until at least a half-millennium of leaving-alone has been completed.

So when you object to red cedar, or to a weedy urban lot, you take a snapshot from a lengthy dynamic, and object that what you see in the picture looks less appealing then something you mistakenly expected. Leave it alone. It will get better. And its presence will help other such places, even discontinuously distant ones, also get better.

For a more complicated investigation, and one even less understood—turn your attention to marine ecology. Then get into really unexplored territory, and study soil ecology and the micro-biome.

A problem with legally prioritizing dollarable development is that the developers pay no more than token attention, if that, to any of the issues mentioned above. And they are at work with no erasers on their pencils. To encourage that is beyond unwise.

[JoeFromtheBronx]

Thanks for an explanation to help explain why only three conservatives would have granted cert. in the case.

The justices have spent more time in recent years to find good "vehicles" to decide issues.

I don't agree with the breadth of criticize of Kelo found in the OP but that doesn't change the usefulness of the background details.

I also like this bit from the opinion below:

"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."

[gormadoc]

I remember that this ridiculous case has been mentioned here before.

[mrisch]

FWIW, we have tons of these open space uses in my area, including some that the township required developers to leave in subdivisions as part of the development plan. Indeed, there's a big field right across the street from my house. I think maybe it was supposed to be a park park in the 1970s, but that never happened and now it is open space, one of the last areas the deer can hang out.

Indeed, our township just put on the ballot an increase in property and income taxes to buy MORE of this sort of open space, precisely to limit apartments and other high traffic uses that are both overcrowding the schools and the streets. I am sure you would disagree with this as a matter of policy, but it's definitely a real "public use" of the land.

[Martinned2]

Another area where a proportionality test would improve US constitutional law immensely. Rather than turning "public use" into a yes/no question, the court would ask things like "it's great that you want to have a passive park, but does it really need to be in that exact spot?"

[Brett Bellmore]

What would really help is if prices paid in eminent domain cases weren't routinely lowballing the value of the property. People hate being subject to eminent domain because they get cheated.

A real 'market price' for the property would leave the owner indifferent to whether they got to keep it, not almost uniformly regretting having it taken.

In this case, Brinkmann wasn't paid for the value of the property to him, he was only paid for its value as an empty field, stripped of all the advantages of the location for his proposed use. But another empty field somewhere else, that he could possibly buy for the money he got from the taking, would not have remotely the same value.

[Stephen Lathrop]

Bellmore, explain why justice is better served by insisting a developer get a speculative future price, based on presumed success, instead of compensation based on what a property actually cost to acquire.

A problem with your advocacy is that land development is an industry reliant on creating speculative cusps in a land parcel's price history. Your advocacy tends toward stimulating a transformation in the industry, with the dominant business model becoming optioning land, mobilizing dark influence to get it rezoned, and then, in the event of frustration, suing for profit at public expense.

I am not guessing about that. That process has been aggressively practiced for at least 50 years that I know of. If the courts permit it, it runs wild. Naturally, there is a lot of unseen political pressure on courts—elected courts, mainly—to permit it.

[Brett Bellmore]

"nor shall private property be taken for public use, without just compensation"

What is "just" compensation? WHY is "just" compensation required?

It's a general principle here, that expenditures for the general welfare should be paid for by taxation on the general population. Not by picking designated fall guys, and saying, "You! Yes, you! Sucks to be you."

So, when government needs a piece of land for some vital purpose, government can't just take it, they have to make the person losing the land whole, and only subject them to the same costs of the exercise everybody else bears.

When somebody has a specific use for a piece of property they already own, and in the normal course of events that use is legal, making them whole involves compensating them for the loss of THAT piece of property, not some random piece of property which isn't, for their purposes, interchangeable with it.

[Stephen Lathrop]

Want to try again, and answer the question I asked you?

[Brett Bellmore]

Want to try reading again, instead, and realize that I did answer it?

[Stephen Lathrop]

Bellmore — Reiterations are not rebuttals.

Experience has long-since shown that your insistence amounts to an open-ended tap on the public fisc, accompanied by a demand for a general legal bias against an array of public interests which cannot be wisely addressed except with particularity.

That is all old-fashioned advocacy, and thoroughly outworn.

Note also: for land developers, the notion of a uniquely indispensable property amounts to a confession of professional incompetence. There is zero reason why a professional land developer should not be repeatedly frustrated, thwarted, and beset with public concerns, until he comes up with a proposal which aligns his own interest with public needs.

You insist to the contrary: that a developer should get what he wants every time, and the public be damned. That problem is in your head, not in the Constitution.

[Noscitur a sociis]

A real ‘market price’ for the property would leave the owner indifferent to whether they got to keep it, not almost uniformly regretting having it taken.

I’m not sure you understand the purpose of eminent domain.

[Brett Bellmore]

I understand it quite well: When the government needs some specific piece of property for some governmental purpose, eminent domain allows the government to get THAT piece of property even if the owner takes advantage of the government not having other options to set an outrageous price. It really has no proper application for cases where any old piece of property would do.

It seems to me you don't understand the purpose of the takings clause.

[JoeFromtheBronx]

The proportionality principle has some value but here the basic matter is best left to the legislature.

There was no illegitimate taking. Kelo was more sympathetic because a home was involved. In U.S. law, that brings in additional Fourth Amendment concerns. This doesn’t involve that.

Getting courts involved in the “exact spot” of where to put parks is not necessary as a general matter. That is the textbook example of what legislatures weigh pro/con.

[Brett Bellmore]

Kelo was an illegitimate taking, because the takings clause says "public use", NOT "public purpose", and the land was not taken for a public use, but instead to be handed over to a different private owner to be used privately.

[Stephen Lathrop]

Martinned2 — Systematic research to improve ecological policy, and develop parks accordingly, can be beneficial. But it is also a fraught topic. A book which discusses all that at length, with scholarly dispassion, was written by my boyhood friend Robert Keiter. The book is titled, To Conserve Unimpaired. The Evolution of the National Park Idea.

Keiter has been the Wallace Stegner Professor of Law, University Distinguished Professor, and founding Director of the Wallace Stegner Center for Land, Resources, and the Environment at the S.J. Quinney College of Law at the University of Utah. Keiter's topic (and career) have been at least as much about conflicts, contested interests, and environmental shortfalls as they have been about a long-term trajectory proceeding haltingly toward improvement. It has been a movement frequently challenged, and not infrequently reversed unwisely.

[Krayt]

If it's so vitally important, and The People want to do it through their elected representatives, then The People can pay for the land, as they required of their government 240 years ago.

[Stephen Lathrop]

Were you answering someone else?

[Brett Bellmore]

So, this is your new shtick, pretending that people haven't responded to what you said?

[Stephen Lathrop]

Bellmore — The comment replied to was about a book concerning policy to manage already-public land—the National Park System. Most of it was never private. A smallish but notable fraction of it was assembled out of voluntary charitable donations. A minuscule fraction involved takings by eminent domain, for which property owners were of course paid.

Given that, WTF do you, or Krayt, even think you are talking about? Do you number yourself among the fools who think Yellowstone (and the national park system generally) set a terrible precedent? Are you the kind of crank who thinks below-market grazing allotments on public land create a private right, or that state laws to extend ecologically sound game management beyond National Park borders ought to be somehow prohibited? Maybe you are a Sagebrush Rebellion kind of guy.

Habitually shouting, “Mine! Mine! Mine!,” is pretty stupid, when you are in fact talking about land that isn’t even yours, and policy in which you have no more right of decision than anyone else.

[Brett Bellmore]

It would be nice if the Court spent less time writing books, and more time deciding cases, not just because they look like "good vehicles", but occasionally just to undo an injustice.

[Patrick Henry, the 2nd]

Exactly. The Court often fails to do its job.

"But not every injustice makes a good Supreme Court case. Sadly, this is one of the many that doesn't."

Actually every injustice DOES make a good case. But sadly, this is one of the many that that does but the Court fails to act on.

[JD85]

In this instance, even if it was a spite taking, the land is at least being taken for "public use". If the empty lot is an empty field (as described), such locations can (and often are) used by local persons for walking, picnics, or to play.

[Brett Bellmore]

I think there's probably a better case for the price being illegally low, than for keeping a piece of land empty not being a public use, so long as the public is allowed onto the land.

[Krayt]

It's ironic that, under current precedence, they could seize the land for the express purpose of letting them build their big box retail store.

I guess it's up to the whims of the politician. Democracy uber alles!

[Recondite Dabbler]

This really comes down to the law around regulatory takings. The government can take for public use (which a park, even if left as a field, undoubtedly is), but it has to pay. The amount it has to pay depends on the value of the land, but the value of the land depends on its potential uses. If the government can regulate away potential uses so as to pay less for the land, is it really “just compensation”? Penn Central is the real problem, not Kelo. Completely limiting categories of uses of land, whether on the land, below it (mineral rights), or above it (air and development rights) effect a taking of property all the same, and we might have to compensate for it. These are tough questions though and finding the limiting principles is very difficult because we are so far removed from a state-of-nature and the concept of property and ownership in the early days of the country. We live in a sea of regulation around building and development, at least in cities and suburbs where most people live.

[Brett Bellmore]

That's the problem, essentially, with undoing the anti-Lochner judicial revolution against economic liberty: We've gone so far down this road you can scarcely imagine walking it back.

[Stephen Lathrop]

The amount it has to pay depends on the value of the land, but the value of the land depends on its potential uses. If the government can regulate away potential uses so as to pay less for the land, is it really “just compensation”?

Dabbler — That was an outworn argument at least 40 years ago, when it paraded under the banner of, "Highest and best use."

So it's agriculturally zoned land. What are its potential uses? Agriculture. Would it be worth more if it were rezoned, to permit a lead smelter? Maybe so. The National Lead Company might take a shot at that. Is it your advocacy that some principle of law (or is it laissez faire?) requires the county to rezone, permit the lead smelter, make the property more valuable, and degrade the values of adjoining parcels for miles around? Explain why.

[ReaderY]

There are many legitimate public use reasons land is deliberately left undeveloped, including wildlife refuges, protecting native plant species, protecting watersheds from pollution, firebreaks, flood control, and many more.

If the Supreme Court were to hold that all these many purposes are illegitimate public uses, it would be making a developer-friendly political decision, not a constitutional one.

[Larryhoskins]

Unfortunately, this is now a catch-all excuse for governments to take any property they want for any real reason. They call it a passive park, leave it vacant until a better (or more politically desirable) use comes along… boom, approved. There’s nothing requiring them to keep it as such in perpetuity. They forcibly take the land, letting it just sit for a day, while they begin the process of transferring the “passive park” to a developer with political connections (or just a preferred use). What’s to stop them from taking any land they desire, say it’s to have a “passive park”, then have it open the the public for a day, then sell it to Amazon, or a pro sports team, or just someone with more money to build a bigger house? Or a politically connected resident to steal his neighbors house so he can increase his property value with the “green space” next door. Nothing. It is incredibly irresponsible of the SC to let this stand. If a property is to be taken for public use, that should require some actual conversion to said use. Vacant lots should not qualify as “use”. This is an egregious abuse of government power and the SC has made a huge mistake by not taking the opportunity to call BS on this abuse. I’m certain this will become a regular play call by local governments to get away with this theft.

[Stephen Lathrop]

Hoskiins — On that reasoning, Yellowstone—one of the nation’s larger vacant lots—does not qualify as use?

The ideology you profess installs a one-way ratchet, destined perpetually to take one bite after another out of public lands, until nothing natural, or public, is left.

[JHR]

Of course this isn't a good vehicle for overturning Kelo. The petitioners weren't asking the court to do that.

Kelo is only relevant because the Kelo majority said that it had no intention of questioning the rule that "pretextual" or "bad faith" takings are unlawful. This rule has been around for the better part of a century, and numerous state supreme courts had applied it in situations materially indistinguishable from this case.

In rejecting the doctrine, the Second Circuit became the first court (except the district court in the same case), to hold that pretextual takings are lawful. That holding created a major split of authority, including with the Supreme Court of Connecticut, which means the scope of one's substantive property rights in CT depend on whether one is in federal or state court.