Amicus Curiae Brief — Ben Brinkmann, et al., Petitioners v. Town of Southold, New York

No. 23-1301

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

BRIEF OF SUSETTE KELO AS AMICA CURIAE

IN SUPPORT OF PETITIONERS

MATTHEW A. SCHWARTZ

Counsel of Record

MICHAEL T. LEMANSKI

SULLIVAN & CROMWELL LLP

125 Broad Street

New York, NY 10004

(212) 558-4000

schwartzmatthew@sullcrom.com

I

TABLE OF CONTENTS

Page

Interest Of Amica Curiae ............................................. 1

Summary Of Argument .................................................. 2

Argument ........................................................................ 4

I.

The Second Circuit’s Decision Breaks

With The Approach Of Other Courts..................... 4

II. The Second Circuit’s Assumption That

Scrutinizing Pretextual Takings Would

Be Unmanageable Is Wrong .................................. 8

A. Courts Routinely Look Beyond

Government’s Stated Reason For

A Taking To Its True Purpose .......................... 8

B. There Is No Principled Reason To Allow

A Court To Ask Whether A Taking’s Real

Purpose Is To Confer A Private Benefit,

But Not Whether Its True Purpose Is

Animus Or Spite ............................................... 14

III. The Second Circuit’s Decision Puts The

Rights Of Unpopular Minorities At Risk ............ 18

Conclusion ..................................................................... 22

II

TABLE OF AUTHORITIES

Page(s)

Cases

99 Cents Only Stores v. Lancaster Redev. Agency,

237 F. Supp. 2d 1123 (C.D. Cal. 2001).............. 15, 16

Aaron v. Target Corp.,

269 F. Supp. 2d 1162 (E.D. Mo. 2003) .................... 16

Albanian Assoc. Fund v. Township of Wayne,

2007 WL 2904194 (D.N.J. Oct. 1, 2007) ................. 19

Bear Creek Twp. v. Riebel,

37 A.3d 64 (Pa. Commw. Ct. 2012) ......................... 11

Benevolent & Protective Order of Elks, Lodge

No. 65 v. Planning Bd. of Lawrence,

403 Mass. 531 (1988) ................................................. 17

Brannen v. Bulloch Cty.,

193 Ga. App. 151 (1989) ............................................ 18

Chabad Lubavitch of the Beaches, Inc. v. Village

of Atlantic Beach, No. 22 Civ. 4141

(E.D.N.Y. Sept. 6, 2022) .......................................... 20

City of Lafayette v. Town of Erie Urban Renewal

Auth., 434 P.3d 746 (Colo. App. 2018).................... 14

City of Rapid City v. Finn,

668 N.W.2d 324 (S.D. 2003) ..................................... 18

Cottonwood Christian Ctr. v. Cypress Redev.

Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002) .... 20

County of Hawaii v. C&J Coupe Family L.P.,

119 Haw. 352 (2008) .................................................. 18

Deep v. City of North Adams,

2006 WL 2853878

(Mass. App. Ct. Oct. 6, 2006) ................................... 17

III

Cases—Continued

Earth Mgmt., Inc. v. Heard Cty.,

248 Ga. 442 (1981) ..................................................... 14

Faith Temple Church v. Town of Brighton,

405 F. Supp. 2d 250 (W.D.N.Y. 2005) .................... 20

FKM P’ship v. Board of Regents,

255 S.W.3d 619 (Tex. 2008)................................ 13, 14

Franco v. National Capital Revitalization Corp.,

930 A.2d 160 (D.C. 2007) .......................................... 18

In re General Mun. Auth. of City of Nanticoke,

292 A.3d 1162 (Pa. Commw. Ct. 2023) ................... 11

Gonzalez v. Trevino,

144 S. Ct. 1663 (2024) ................................................. 8

Kelo v. City of New London,

545 U.S. 469 (2005) ............................................... 1, 18

Knick v. Township of Scott,

588 U.S. 180 (2019) ................................................... 21

Lance’s Appeal,

55 Pa. 16 (1867) ........................................................... 9

Middletown Twp. v. Lands of Stone,

595 Pa. 607 (2007) ............................................... 10-12

Mount Laurel Twp. v. Mipro Homes, L.L.C.,

379 N.J. Super. 358 (App. Div. 2005) ..................... 14

New England Estates, LLC v. Town of Branford,

294 Conn. 817 (2010) ............................... 4-7, 9, 12, 16

Pheasant Ridge Assoc. L.P. v. Town of Burlington,

399 Mass. 771 (1987) ...............................12, 13, 16, 17

Rhode Island Econ. Dev. Corp. v. The Parking Co.,

892 A.2d 87 (R.I. 2006) ........................................... 7-9

St. John’s United Church of Christ v. City of

Chicago, 502 F.3d 616 (7th Cir. 2007) .................... 20

IV

Cases—Continued

In re Township of Robinson,

2023 WL 3047814

(Pa. Commw. Ct. Apr. 24, 2023) ............................. 17

Constitutional Provisions

U.S. Const.

Amend. I .......................................................... 8, 19, 20

Amend. V (Takings Clause) ................ 2, 4-10, 19, 21

Statutes

42 U.S.C. § 1983 ............................................................... 4

Religious Land Use and Institutionalized Persons

Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc..... 19, 20

32 Penn. Stat. § 5008(b)................................................. 10

Other Authorities

JEFF BENEDICT, LITTLE PINK HOUSE: A TRUE

STORY OF DEFIANCE AND COURAGE (2009) ............ 1

LITTLE PINK HOUSE (Korchula Prods. 2017) .............. 1

Patrick E. Reidy, C.S.C., Note, Condemning

Worship: Religious Liberty Protections and

Church Takings, 130 YALE L.J. 226 (2020) .......... 20

INTEREST OF AMICA CURIAE1

Susette Kelo, a registered nurse, was the owner of

a little pink house in New London, Connecticut. When

the City of New London tried to take her dream home

in the name of “economic development” that principally

benefitted pharmaceutical giant Pfizer, Ms. Kelo sued

to save her home and protect her constitutional rights.

In 2005, Ms. Kelo’s case reached this Court, which, in

a 5-4 decision, regrettably approved the taking. Since

then, Ms. Kelo’s little pink house has been relocated to

a new neighborhood in New London, Pfizer has left

town, and the former site of Ms. Kelo’s home remains

an empty lot. Ms. Kelo, however, has continued to advocate against eminent domain abuse, testifying before

Congress and telling her story in the media to educate

the public about how unchecked government takings

trample the rights of everyday people. Ms. Kelo’s

story has been the subject of a book and feature film,

LITTLE PINK HOUSE. In response to Ms. Kelo’s experience, and this Court’s decision to allow the City of

New London to take her home, dozens of states have

strengthened their legal protections against eminent

domain abuse through legislation and voter initiatives,

and as the result of litigation.

Ms. Kelo has an interest in ensuring that the courts

remain faithful to the Constitution’s promise of protec-

All counsel of record received timely notice of amica curiae’s

intention to file this brief. No counsel for a party authored this brief

in whole or in part, and no party or counsel for a party made a monetary contribution intended to fund the preparation of or submission

of this brief. No one other than the amica curiae or her counsel made

a monetary contribution to the preparation or submission of this

brief.

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tion for private property rights. She knows how devastating having one’s life uprooted by the abuse of eminent domain can be, and how lonely it can feel to take

on powerful government interests intent on getting

their way regardless of the Constitution. Although the

abuse of eminent domain at issue here—the taking of

private property under false pretenses for illegitimate

ends—differs from the abuse Ms. Kelo suffered, it is no

less pernicious and deserves this Court’s attention.

SUMMARY OF ARGUMENT

This case concerns whether courts should look beyond a government’s claim that it is taking private

property for “public use” when the property owner has

adequately pleaded that the government’s real purpose

is to prevent the unpopular, but wholly legal, use of

that property. In a 2-1 panel decision, the Second Circuit answered “no”: so long as the government offers

an explanation that facially satisfies the Fifth Amendment’s public-use requirement, courts must accept that

explanation. In other words, if the real reason for a

taking is bigotry, retaliation for unpopular speech, or

even a personal vendetta, the Second Circuit’s message

to aggrieved property owners is “too bad, the Fifth

Amendment allows it.”

The Second Circuit’s decision creates a direct split

with other courts, is wrong on the law, and leaves property owners vulnerable to pretextual and unlawful takings without judicial recourse to protect their rights.

This Court should grant certiorari and reverse.

First, the Second Circuit’s decision parts ways with

other courts—including, most notably, the Connecticut

Supreme Court—that have held the Fifth Amendment

requires a more searching inquiry into whether a taking satisfies the public-use requirement. This Court

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should resolve this intra-circuit split and, moreover,

bring clarity to takings law across the country.

Second, the Second Circuit’s decision is wrong in

holding that courts should not scrutinize pretextual

takings because the inquiry lacks judicially administrable standards. State courts routinely ask whether the

government’s stated reason for a taking is the true purpose to ensure that the condemnation complies with the

federal and state constitutions and with state statutory

limits on the eminent domain power. Federal courts

also determine whether a taking’s alleged public use

actually is a cover for conferring a private benefit.

These cases clearly show that scrutinizing the government’s reasons for taking private property does not, as

the majority below feared, inevitably devolve into a

“judicial inquiry into the subjective motivation of every

official” involved in the taking, Pet. App. 9a. The Second Circuit’s belief that looking past the stated purpose of a taking is “fraught with conceptual and practical difficulties,” and so is best avoided, ibid., cannot be

squared with the experience of numerous jurisdictions

that have had no such trouble giving full effect to property owners’ constitutional rights. The Court should

correct the Second Circuit’s error.

Third, the Second Circuit’s refusal to intervene in

these cases is not harmless. Using eminent domain to

stop the construction of a house of worship, to change

the racial demographics of a neighborhood, to punish a

homeowner for criticizing public officials, or to prevent

a legal but unpopular business from opening serves no

legitimate public purpose. And applying a veneer of

constitutionality to such acts—e.g., by turning the land

taken from a religious congregation into a park—does

not change that conclusion. This is not a matter of trying to police “bad reasons for doing good things,” as the

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Second Circuit seemed to suggest, Pet. App. 11a; rather, the decision below shields blatant abuses of public

authority from scrutiny so long as public officials give

the right excuses. As Ms. Kelo knows all too well, losing one’s home, place of worship, or business in a taking can be a traumatic, life-changing experience; knowing the government did this to you out of animus or

spite adds insult to the injury; a court of law turning a

blind eye when that happens squares it. This Court

should intervene to ensure that vulnerable property

owners in the Second Circuit enjoy the Constitution’s

full protection.

ARGUMENT

I. THE SECOND CIRCUIT’S DECISION BREAKS

WITH THE APPROACH OF OTHER COURTS.

The Second Circuit’s deferential approach to pretextual takings opens a rift with other courts that have

looked past the stated reason for a taking to its true

purpose when determining whether it satisfies the

Fifth Amendment’s public-use requirement. Two state

supreme court decisions, including one from a state in

the Second Circuit, illustrate this split.2

1. New England Estates, LLC v. Town of Branford,

294 Conn. 817 (2010), offers a clear contrast. There,

the Connecticut Supreme Court upheld a jury verdict

in favor of a property developer who sued under 42

U.S.C. § 1983 alleging that the town’s pretextual taking of a piece of land violated the Fifth Amendment (as

applied to state government entities by the Fourteenth

Both the Brinkmanns’ petition for a writ of certiorari and Judge

Menashi’s dissent below identify numerous other state courts that

line up opposite the Second Circuit on this issue. See Pet. 9-11; Pet.

App. 29a-33a.

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Amendment). The jury heard evidence that the town’s

stated reasons for the taking—to remediate environmental contamination from a nearby landfill and, ultimately, build supposedly much-needed sports fields—

was a sham, and that the real reason for the taking was

to stop the plaintiff’s affordable housing development.

Id. at 822-29. The court squarely held that “a government actor’s bad faith exercise of the power of eminent

domain is a violation of the takings clause,” and concluded that the jury was within its rights to find that

the town “act[ed] in bad faith in exercising its eminent

domain power” and “violated the public use requirement of the taking clause.” Id. at 840, 853-54.

Two additional aspects of the decision sharpen the

contrast. First, there is no ambiguity about whether

the decision rested on the Fifth Amendment right at

issue here or on an alternative state-law ground. Because only the plaintiff’s federal-law claim reached the

jury, New England Estates, 294 Conn. at 828 n.13, the

Connecticut Supreme Court addressed only the federal

constitutional right.

Second, the pretext was not particularly difficult to

detect, provided one was willing to look, as the town’s

actions had all the hallmarks of sham decision-making.

Sudden departure from long-settled plans? Check.

The jury heard that the town’s concerns about contamination from the landfill materialized only after town

officials caught wind of an imminent planning application for the development. Id. at 825-28. Indeed, the

town plan had designated the land in question for residential development for more than 20 years while the

landfill operated next door—a curious choice for a supposedly contaminated site. Id. at 822-27. Nor did the

town raise similar concerns with earlier development

plans that called for market-rate apartments and a golf

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course. Id. at 823-24, 827. Similarly, town officials only

raised the possibility of acquiring the land for playing

fields after they learned that New England Estates

planned to build affordable housing on the site. Id. at

826-27 & n.9.

Justifications unsupported or contradicted by the

available evidence? Check. The town’s only evidence

that the land actually was contaminated came from a

five-page report—submitted to the town attorney for

comments before it was finalized—discussing possible

environmental concerns that typically arise in residential developments near a landfill generally, not an analysis of the site in question. Id. at 827-28.

Last-minute additions to the record in support of

the decision? Check. To support its supposed need for

playing fields, the town relied on little more than a

“sketch” by the town engineer created at the eleventh

hour for the express purpose of supporting the planned

condemnation. Id. at 826-27.

A rushed decision with little to no discussion or debate? Check. The approval process took just over one

month from start to finish and consisted of only three

public (but poorly publicized) meetings conducted behind the property owner’s back. Id. at 827-28.

Add to the mix internal communications between

town officials suggesting that “the town was not receptive to an affordable housing development,” and jurors

had no trouble finding that “the town had been dishonest about its reasons for taking the land and had used

a pretext” to stop the plaintiff’s proposed development.

Id. at 822, 825-26, 842. In fact, the town did not challenge the jury’s finding of pretext on appeal, arguing

instead that “it did not violate the [Fifth Amendment’s]

public use requirement by being dishonest about the

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reasons for which it took the land”—a position the Connecticut Supreme Court rejected, id. at 853-54, but

which the Second Circuit endorsed below, Pet. App. 3a.

2. Similarly, Rhode Island Economic Development

Corp. v. The Parking Co., 892 A.2d 87 (R.I. 2006), took

a hard look at a state agency’s stated reason for taking

private property (an airport parking garage) to determine whether the taking’s true purpose complied with

the Fifth Amendment’s public-use requirement. Id. at

102-07. In court, the agency claimed that “the primary

public purpose for the condemnation [was] increased

parking” near the airport. Id. at 105. But the evidence

showed “no additional parking spaces were created” as

a result of the taking, and, indeed, “there was no finding that there was a shortage of parking spaces * * * or

that the motoring public was unable to park at the airport or was inconvenienced in any way.” Ibid. The

agency, in fact, “failed to make any findings” to support its assertions of need. Ibid. (emphasis added).

This “hasty maneuvering,” the Rhode Island Supreme

Court held, demonstrated that the agency’s true purpose lay elsewhere. Id. at 106.

The Rhode Island Supreme Court similarly rejected

the agency’s vague economic-development rationales,

noting that, even if “promot[ing] a healthy and growing

economy” and providing the public with “appropriate

transportation facilities” were valid public purposes for

a taking, “[t]here is no correlation between these * * *

goals and the condemnation of a temporary easement

in a [parking garage].” Id. at 105-06. Nor had the

agency even bothered to make any formal findings to

that effect. Id. at 106.

Rather, the record revealed another purpose. A related state agency had obtained a purchase option for

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the property years earlier, but the strike price it contractually agreed with the owner was more than it now

was willing to pay. Id. at 93, 104-06. The true purpose

of the taking therefore was “to gain control of [the garage] at a discounted price” and “to benefit from a profitable business at the expense of its rightful owner.”

Id. at 107. The court held that this “arbitrary” and

“bad faith” attempt to circumvent the terms of an existing contractual relationship, obscured by the government’s purported interest in flyer convenience and

economic development, “was not * * * a public use,”

and thus violated the Takings Clause. Id. at 106-07.

II. THE SECOND CIRCUIT’S ASSUMPTION THAT

SCRUTINIZING PRETEXTUAL TAKINGS WOULD

BE UNMANAGEABLE IS WRONG.

A. Courts Routinely Look Beyond Government’s

Stated Reason For A Taking To Its True Purpose.

Following this Court’s precedents, courts routinely

look to legislative purposes to determine whether government actions are constitutional.3 Yet, according to

the Second Circuit, looking behind the stated reason

for a taking of private property to its true purpose is

an impractical, if not impossible, task. The decision below warns that doing so invites “a full judicial inquiry

into the subjective motivation of every official” who

voted for, approved, or otherwise supported the taking,

and means asking courts to “gauge the purity of the

See Pet. App. 26a-27a (Menashi, J., dissenting) (collecting cases);

see also Pet. 26-27. The same is true outside the legislative context.

Indeed, just this term, this Court reaffirmed that plaintiffs bringing

First Amendment retaliatory-arrest claims may rely on objective

evidence that they were singled out for their speech notwithstanding

the existence of probable cause. Gonzalez v. Trevino, 144 S. Ct. 1663,

1667 (2024).

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motives of * * * government officials.” Pet. App. 9a10a (quotation omitted). Because “[s]uch motives are

by nature fragmented—and rarely, if ever, pure”—and

“[d]ifferent legislators may vote for a single measure

with different goals,” there is little point in trying. Pet.

App. 10a. Given these “conceptual and practical difficulties,” the Second Circuit therefore suggested it is

better not to look too closely beyond what the government says it is doing when it takes someone’s property.

Pet. App. 9a.

The Second Circuit’s concerns are vastly overblown.

The experience of numerous courts around the country

demonstrates that “giv[ing] close scrutiny to the mechanics of a taking,” Pet. App. 10a (quotation omitted),

is neither impossibly difficult, nor particularly unusual.

Both New England Estates and Rhode Island Economic Development Corp. relied on objective evidence

of the true purpose driving the government’s use of

eminent domain to invalidated pretextual takings. See

pp. 4-8, supra. And numerous other courts across the

country have similarly looked past pretextual justifications—whether to measure the taking against the Fifth

Amendment’s constitutional minimum or against more

stringent standards under their respective states’ own

constitutions and various statutes regulating the use of

eminent domain.

1. Pennsylvania courts’ experience with pretextual

takings is instructive. For over 100 years, the state’s

courts have required that a “public interest * * * lie at

the basis of the exercise [of eminent domain power]” to

comply with the state constitution and have recognized

that taking property for a use other than “the purpose

which justifies its taking * * * would be a fraud on the

owner, and an abuse of power.” Lance’s Appeal, 55 Pa.

16, 25 (1867). Pennsylvania also places statutory limits

10

on the public uses for which different government entities can take private property. E.g., 32 Penn. Stat.

§ 5008(b) (providing that certain local governments are

not authorized to take private property for conservation purposes under the Open Space Lands Act).

To determine whether a taking complies with these

constitutional and statutory limitations, as well as with

the Fifth Amendment, Pennsylvania courts look not

only at the stated reason for the taking, but also at all

available evidence from which they can discern its true

purpose. In Middletown Township v. Lands of Stone,

595 Pa. 607 (2007), for example, the Pennsylvania Supreme Court rejected the township’s explanation that

a taking was for “recreational purposes,” citing objective evidence that the true purpose of the condemnation was to stop potential development on the land and

to maintain open spaces, a purpose not authorized by

statute, id. at 610-21.4

The court observed that the township’s interest in

recreational use was speculative at best, as it merely

was “consider[ing]” “various recreational options,” but

had no concrete plans. Id. at 619. And the township’s

supposed interest in using the property as parking for

a festival previously held in a neighboring park not

Although the Pennsylvania Supreme Court ultimately decided

the case on the narrower statutory grounds, it emphasized that the

“Takings Clause of the Fifth Amendment provides the only means of

validly overcoming the private right of property ownership,” and that

the “true purpose [of the taking] must primarily benefit the public”

to satisfy the Constitution’s public-use requirement. Id. at 617. If

anything, the statutory basis for the Pennsylvania Supreme Court’s

decision required it to more finely parse different motivations for the

township’s actions, further demonstrating that the Second Circuit’s

concern about the judicial administrablility of a coarser-grained pretext analysis under the Fifth Amendment, see Pet. App. 9a-11a, is

wholly unfounded.

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only was equally speculative (the township was only

considering reinstituting the festival “in the future”)

but also, at most, justified taking a small part of the

land abutting the park, not an entire 175-acre working

farm. Id. at 619-20. Finally, the court dismissed the

township’s suggestion that the farmland might

“provid[e] passive recreation”—a euphemism for leaving the land empty, albeit publicly accessible—because

the record disclosed no “suggestion that the Township

ha[d] considered, let alone created, such a plan.” Id. at

620.

In contrast, there was ample objective evidence that

the township’s purpose was to stop residential development on the land. The property came to the township’s

attention only after it became aware of possible development. Ibid. And officials proposed allowing the current owner to continue commercially farming the land,

which was inconsistent with the township’s supposed

recreational interest, but would serve the purpose of

stopping any development. Id. at 610, 619-20. Statements by individual public officials, like “We just don’t

want [the land] to go to developers,” simply confirmed

what the objective evidence already made clear. Id. at

610, 620.

Lands of Stone is not an isolated case. Pennsylvania

courts regularly undertake a similar analysis to determine whether government takings are constitutional

and authorized by statute.5 In all events, however, the

government “is not free to give mere lip service to its

See, e.g., In re General Mun. Auth. of City of Nanticoke, 292

A.3d 1162, 1171-75 (Pa. Commw. Ct. 2023) (remanding for factual

findings about the taking’s “true purpose”); Bear Creek Twp. v.

Riebel, 37 A.3d 64, 70-71 (Pa. Commw. Ct. 2012) (rejecting after-thefact justifications for taking and concluding that its true purpose exceeded township’s statutory authority).

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authorized purpose or * * * offer retroactive justification.” Lands of Stone, 595 Pa. at 617.

2. Massachusetts courts conduct a similar analysis

under the federal and state constitutions. In Pheasant

Ridge Associates L.P. v. Town of Burlington, 399

Mass. 771 (1987), the Supreme Judicial Court held that

“a municipal land taking, proper on its face, may be invalid because it was undertaken in bad faith.” Id. at

775. A “bad faith” taking, it explained, “is not limited

to action taken solely to benefit private interests,” and

includes any taking with an improper true purpose. Id.

at 776. There, town authorities took land slated for a

housing development that included affordable units ostensibly for “parks, recreation, and the construction of

moderate income housing.” Id. at 772-73. The court

rejected the town’s explanation, and concluded based

on undisputed facts that it improperly took the land

solely to block the planned development. Id. at 777-79.

The court looked to three main pieces of evidence

shedding light on the town’s true purpose. First, as in

New England Estates, Lands of Stone, and the present

case, the town’s interest in the property arose only after the property owner took steps towards developing

it. See id. at 778. Indeed, the site was never previously

“considered for acquisition for park or recreational

uses.” Ibid. Ditto for building “low and moderate income housing on or near the site.” Ibid.

Second, the court highlighted a number of ways the

town departed from its normal procedures. See id. at

778-79. For example, town officials never consulted

any of the agencies responsible “for town activities in

the areas for which the land was to be taken” about the

proposal’s “merits or feasibility.” Id. at 778. Instead,

the taking’s supposed purpose “w[as] developed by the

selectmen and town counsel within minutes before

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the * * * town meeting” called to approve the taking.

Ibid.

Third, the court considered the statements of public

officials at the meeting that approved the taking. The

Supreme Judicial Court was sensitive to the difficulty,

which motivated the Second Circuit’s inaction here, of

“attribut[ing] improper motives to a town [as a whole],

and to its citizens voting at [the] town meeting.” Id.

at 777. It therefore distinguished between the statements of individual public officials, in general, which it

held were not, by themselves, “admissions that may be

used against the town,” and specific statements probative of what the townspeople were asked to vote on and

approve at the meeting—there, a “presentation by the

chairman of the board of selectmen” about the condemnation proposal that “show[ed] beyond question that

the town meeting was being asked to consider the motion, not on the merits of the acquisition of the site for

uses stated in the motion, but to bar the plaintiffs’ development.” Id. at 779-80.

To be sure, proving pretext often “is not easy,” and

the especially clear record of the town’s true purpose

in Pheasant Ridge might be “unusual,” id. at 775-76,

but the difficulty falls on property owners challenging

the taking, who must prove their case, not on courts,

which are more than capable of examining the objective

evidence of a taking’s true purpose when presented.

3. That numerous other states have applied similar

pretext analyses simply underscores the point that this

inquiry is not beyond the ken of judges and juries, as

the Second Circuit majority supposed. See, e.g., FKM

P’ship v. Board of Regents, 255 S.W.3d 619, 628-31

(Tex. 2008) (considering objective evidence of taking’s

purpose to determine whether it was “fraudulent, without a true public purpose, and intended solely to * * *

14

avoid paying landowner’s expenses under statutory

provisions”); Earth Mgmt., Inc. v. Heard Cty., 248 Ga.

442, 446-47 (1981) (considering objective circumstances

surrounding county’s acquisition of land for a park, including whether “other land was ever considered,” lack

of “on-site surveying, planning, or inspection” before

condemnation, officials’ stated opposition to property

owner’s planned use, and timing of taking, to conclude

park “was not the true reason” for the taking, and that

the true purpose of blocking owner’s planned use was

“beyond the power conferred upon the county by law”);

City of Lafayette v. Town of Erie Urban Renewal

Auth., 434 P.3d 746, 752-53 (Colo. App. 2018) (finding

stated purpose of taking was pretextual based on city’s

lack of prior interest in property, timing of taking, and

inability to explain how land was necessary); Mount

Laurel Twp. v. Mipro Homes, L.L.C., 379 N.J. Super.

358, 375-76 (App. Div. 2005) (concluding township’s

acquisition of residential development for “open space”

was not pretextual because it was consistent with township’s concern that the development would “aggravate

traffic congestion and pollution problems in the municipality and impose added stress on its school system

and other municipal services”); see also Pet. App. 29a33a (Menashi, J., dissenting) (collecting cases).

B. There Is No Principled Reason To Allow A

Court To Ask Whether A Taking’s Real Purpose

Is To Confer A Private Benefit, But Not Whether

Its True Purpose Is Animus Or Spite.

The Second Circuit’s determination that courts are

ill-equipped to parse a taking’s true purpose from mere

pretext allows one special carve-out—courts, the Second Circuit says, may nonetheless ask whether the

stated reason for a taking is a “pretext for a[] * * * private[ ]purpose.” See Pet. App. 8a (emphasis added).

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But this carve-out has no principled basis. The Second

Circuit never explains why the desire to confer a private benefit is any easier to detect than, say, religious

animus or retaliation for unpopular speech. Nor does

the Second Circuit explain why pretextual explanations

covering up a private purpose would be any easier for

judges and juries to see through than those covering

up any other impermissible reason for a taking. In reality, the evidence and analysis in these two situations

that the Second Circuit treats as distinct actually are

identical, as both federal and state court decisions

demonstrate.

1. Federal district courts in at least the Eighth and

Ninth Circuits have entertained claims that a taking’s

stated public purpose was merely a pretext for conferring a private benefit. In 99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F. Supp. 2d 1123

(C.D. Cal. 2001), the district court granted summary

judgment for the property owner, concluding that the

agency’s true purpose for the taking was “to satisfy the

private expansion demands of Costco,” id. at 1129-30.

Just as in other pretext cases not involving a private

benefit, the district court found persuasive the

agency’s lack of preexisting interest in the property.

The court observed that, although the agency justified

the taking by relying on its power to combat blight in

the area, it never made any blight findings about the

property in question or any other property in the vicinity. Id. at 1129. In fact, the agency had not made any

new blight findings in the area for nearly 20 years. Id.

at 1126-27, 1130 n.2. Also like other pretext cases, 99

Cents Only Stores’ challenge relied on statements and

admissions by public officials revealing that the agency

“was willing to go to any lengths—even so far as con-

16

demning commercially viable, unblighted real property—simply to keep Costco within the city’s boundaries.” Id. at 1129.

Similarly, in Aaron v. Target Corp., 269 F. Supp. 2d

1162 (E.D. Mo. 2003), rev’d on other grounds, 357 F.3d

768 (8th Cir. 2004), the court temporarily restrained a

sham redevelopment plan whose true purpose was to

convey property to Target by eminent domain that the

retailer was unable to acquire from the owner directly,

id. at 1174-75. Here, too, the pretextual taking followed a familiar pattern. The City of St. Louis, which

attempted to take the property, showed no interest in

it until approached by Target and never designated it

as blighted until the city started planning the taking.

Id. at 1167-68. And the blight study the city did prepare was put together with Target’s input. Id. at 1168,

1174-75; cf. New England Estates, 294 Conn. at 827-28

(report detailing purported environmental harms submitted to town attorney for comment). Adding a touch

of the absurd, the blight finding rested in part “on the

substandard condition of property Target itself was obligated to maintain.” Aaron, 269 F. Supp. 2d at 1174.

Finally, the district court relied on public statements

and internal memoranda that confirmed what the other

objective evidence before the court made clear—that

the city “decided to condemn the [p]roperties in order

to appease Target, and act[ed] in concert with Target”

to effect the taking. Id. at 1175.

2. State-court pretext analyses involving a private

benefit likewise demonstrate that there is no principled

reason to limit courts’ scrutiny of the stated purpose of

a taking to these facts.

In Massachusetts, for example, courts analyzing

private-benefits takings look to the Pheasant Ridge

case, which did not involve any alleged private benefit,

17

for guidance on how to parse the true purpose behind

a taking from pretext. See, e.g., Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning Bd. of

Lawrence, 403 Mass. 531, 551-53 (1988) (concluding

that taking property to remedy blight was not pretext

to confer private benefit on Emerson College “by

providing it with a favorable location on advantageous

terms” because “the city and various elected officials

expressed considerable interest in the project area before they learned of Emerson College’s plans to relocate,” the city previously attempted to address blight

by other means, and “local authorities * * * considered

the project in depth and based their approvals on substantial evidence”); Deep v. City of North Adams, 2006

WL 2853878, at *4 (Mass. App. Ct. Oct. 6, 2006) (rejecting bad-faith claim after comparing evidentiary record

to evidence considered probative of bad faith in Pheasant Ridge).

The same is true of Pennsylvania’s courts, which analyze pretextual takings claims involving a private benefit in exactly the same way as cases that do not involve

private benefits. See, e.g., In re Township of Robinson,

2023 WL 3047814, at *4-14 (Pa. Commw. Ct. Apr. 24,

2023) (concluding, after reviewing extensive evidentiary record and testimony of public officials, that roadsafety rationale for taking land near intersection was

pretextual, and that the true purpose was to benefit development on neighboring property, based on lack of

prior complaints about safety, safety evaluation of intersection, or “carefully developed plan” related to

road safety, “inconsistent” reasoning supporting condemnation, rushed and poorly documented decision

making, and evidence taking was initiated by engineer

working for neighboring property owner).

18

And numerous other courts across the country have

endorsed similarly searching inquiries into whether a

taking, ostensibly for a public purpose, is a pretext for

conferring a private benefit.6 These cases show that

parsing impermissible private purposes from permissible public ones is no less fact-intensive, and no less intrusive, than identifying any other improper true purpose. If anything, after this Court’s decision in Kelo,7

determining how much private benefit is too much, and

how little public benefit is too little, likely is the more

difficult inquiry. And, similarly, second-guessing local

and state decisions on these issues is, if anything, more

likely to trigger the “state-sovereignty” and “federalism” concerns the Second Circuit cited as a reason not

to scrutinize pretext in other contexts, Pet. App. 10a.

The special carve-out for takings whose real purpose is

to confer a private benefit thus is not only arbitrary,

but also counterintuitive.

III. THE SECOND CIRCUIT’S DECISION PUTS

THE RIGHTS OF UNPOPULAR MINORITIES AT

RISK.

The danger pretextual takings pose to the rights of

disfavored individuals or groups is not just theoretical.

Just as the Town of Southold used eminent domain to

target the Brinkmanns, other municipalities also have

singled out unpopular residents for pretextual takings

6

See, e.g., County of Hawaii v. C&J Coupe Family L.P., 119 Haw.

352, 381-89 (2008); Franco v. National Capital Revitalization Corp.,

930 A.2d 160, 169-75 (D.C. 2007); City of Rapid City v. Finn, 668

N.W.2d 324, 326-29 (S.D. 2003); Brannen v. Bulloch Cty., 193 Ga.

App. 151, 153-56 (1989).

The present case does not require this Court to reconsider Kelo.

Of course, Ms. Kelo encourages the Court to do so, and to overrule

Kelo, in an appropriate case.

7

19

to prevent them from lawfully using their property. In

addition to the examples above of where local governments repeatedly attempted to block the development

of affordable housing, two further examples from the

Tri-State area involving disfavored religious groups illustrate the threat.

In 2006, the Township of Wayne, New Jersey attempted to use eminent domain to prevent a local Muslim congregation from building a new mosque. See Albanian Assoc. Fund v. Township of Wayne, 2007 WL

2904194, at *1-3 (D.N.J. Oct. 1, 2007). The township

claimed to want the property for “open space,” a permitted public use under New Jersey law, but the justification was pretextual. Id. at *5, *7. According to one

public official, the township enacted its “open space”

plan in part because of the congregation’s building application for the mosque, and the congregation’s property was the only one identified for acquisition under

the plan the township actually tried to take using eminent domain. Id. at *2, *11.

The congregation ultimately obtained an injunction

preventing the township from taking the property, id.

at *4, and after its claims under the Takings Clause,

First Amendment, and RLUIPA survived summary

judgment, id. at *1, the congregation obtained a settlement from the township. That success, however, comes

with some caveats. For one thing, the district court’s

summary judgment decision as to the Takings Clause

claim rested on New Jersey’s bad-faith taking precedents, see id. at *5-7, which the Second Circuit here declined to credit, Pet. App. 12a-14a. Had the taking occurred in New York, it is doubtful the congregation’s

claim would have succeeded under the Second Circuit’s

rule. For another, courts are divided about whether

RLUIPA applies to takings, as opposed to zoning and

20

land-use regulations. Compare Cottonwood Christian

Ctr. v. Cypress Redev. Agency, 218 F. Supp. 2d 1203

(C.D. Cal. 2002) (applying RLUIPA), with St. John’s

United Church of Christ v. City of Chicago, 502 F.3d

616 (7th Cir. 2007) (holding RLUIPA does not apply);

Faith Temple Church v. Town of Brighton, 405 F.

Supp. 2d 250 (W.D.N.Y. 2005) (same). Whether a religious group can successfully bring a claim under

RLUIPA thus is far from assured.

More recently, in 2022, the Village of Atlantic Beach

on Long Island, New York attempted to exercise eminent domain to take a Jewish community center shortly

after it opened to create its own government-run community center on the site. See Chabad Lubavitch of the

Beaches, Inc. v. Village of Atlantic Beach, Case No. 22

Civ. 4141, slip op. at 8-13 (E.D.N.Y. Sept. 6, 2022). Although the property had been for sale for years, the village showed no interest in it until after the Jewish

group moved in. Id. at 8-13, 24-25. Indeed, the village

already owned other properties on which it could have

built its community center without displacing a Jewish

one in the process had that been its genuine goal, rather than a pretext. Id. at 6-7, 27.

The Jewish group in Atlantic Beach obtained a preliminary injunction against the taking on the strength

of its First Amendment claim and likewise settled with

the local authorities, allowing it to retain its property.

But this success also comes with caveats. Using eminent domain for the purpose of taking or forestalling a

house of worship may well give rise to a successful

First Amendment free-exercise claim, see Patrick E.

Reidy, C.S.C., Note, Condemning Worship: Religious

Liberty Protections and Church Takings, 130 YALE

L.J. 226, 253-56 (2020) (contrasting success of religious

groups in asserting rights against taking of sanctuaries

21

themselves with mixed record involving other land or

structures), but other forms of religious targeting are

sure to be less clear-cut.

In such cases, the Second Circuit’s instruction that

courts must take government’s stated public purpose

for taking private property at face value severely constricts the legal options victims of discriminatory or retaliatory takings have. If a municipality targeted, say,

a Christian business for its owner’s faith by taking its

parking lot for “road safety” reasons, or if it targeted

a minority-owned restaurant for expropriation by declaring it “blighted,” the Second Circuit’s unjustified

deference to explanations covering up that abuse deprives property owners of an important—and, indeed,

natural—line of defense under the Constitution’s plain

text. The availability of some other claims to some

property owners under some circumstances should not

dissuade the Court from correcting the Second Circuit’s error. The Fifth Amendment’s Takings Clause is

not a “poor relation among the provisions of the Bill of

Rights,” Knick v. Township of Scott, 588 U.S. 180, 189

(2019), and it should not be treated as such here.

22

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted.

MATTHEW A. SCHWARTZ

Counsel of Record

MICHAEL T. LEMANSKI

SULLIVAN & CROMWELL LLP

125 Broad Street

New York, NY 10004

(212) 558-4000

schwartzmatthew@sullcrom.com

Attorneys for Amica Curiae

Susette Kelo

JULY 15, 2024