Is a Taking Based on Pretext Constitutional?

By: Michael M. Berger
– Daily Journal

In his latest Daily Journal column, Manatt Appellate Senior Counsel Michael Berger delved into Brinkmann v. Town of Southold in which the Brinkmanns filed suit against the Town for taking the land on which they were set to construct a big box store. 

In the article, Berger explained the Brinkmanns’ argument that the Town’s claim for taking the land to build a public park was a pretext. The Brinkmanns pointed to the Town’s initial concern that the store would generate too much traffic, then the Town’s subsequent attempt to obstruct the bank from selling the land to the Brinkmanns. Further, the Town claimed that the taking was for a public park yet had no plans to construct typical park amenities, declaring it was for passive use. While the majority decided the passivity of its use was not relevant to the argument, “All three judges agreed that the complaint adequately alleged that the stated public use was a fraud and that the real reason for the condemnation was that the Town did not like the proposed private development and wanted to stop it.” 

Daily Journal subscribers can read the full article here



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