Ben Brinkmann, left, and his brother Hank, who own Brinkmann's Hardware...

Ben Brinkmann, left, and his brother Hank, who own Brinkmann's Hardware in Mattituck, seen here in September 2020. Credit: Randee Daddona

The family-operated Brinkmann's Hardware store plans to take its legal battle to the nation's highest court after a federal appeals court upheld Southold Town's motion to seize the property through eminent domain.

In a 2-1 decision on March 13, the Second U.S. Circuit Court of Appeals ruled against the Brinkmanns, finding that Southold Town properly acquired their Mattituck property using eminent domain, which is the power of a government to take private property for a public use. Now, attorneys for the Brinkmann family plan to petition the U.S. Supreme Court to hear their case.

Brothers Ben and Hank Brinkmann alleged in a 2021 lawsuit that Southold's plans to build a park on the land at the corner of Main Road and New Suffolk Avenue was a “pretext” to stop the family from building a 20,000-square-foot hardware store there. They claimed the town violated their Fifth Amendment Rights, which guarantees that private property may not be taken to benefit another private entity without a justifying public purpose. Plans for the hardware store faced public opposition over traffic and environmental concerns.

The legal dispute is over a 1.8-acre property the Brinkmanns purchased in 2016 for $700,000 with plans to expand their chain of hardware stores.

In the lawsuit, the Brinkmanns say the town relied on tactics like a development moratorium to block the store before voting 4-2 in 2020 to pursue eminent domain to create a passive park.

Judges Dennis Jacobs and Amalya Kearse found that a park — “even an unimproved one” — is a public use, and that the court’s role isn’t to consider their motives behind seizing the land for the park.

“Different legislators may vote … with different goals. Members of a town council who are hostile or indifferent to a hardware store … may vote for a park because they favor open space,” Jacobs wrote.

Judge Steven Menashi dissented, arguing that the creation of a “fake” park was a way to block development. “The town was unable to muster the political support to pass a zoning law or to deny a permit. So the Town of Southold grabbed the land for itself,” Menashi wrote.

But Jacobs fired back, describing Menashi’s opinion as “urbanite” prejudice.

“[Menashi] may come to 12500 Main Road … and he may walk the park, breathe its air or spread his picnic upon it,” Jacobs wrote. “There is nothing fake about it.”

Jeff Redfern, an attorney at the Virginia-based Institute for Justice, a libertarian nonprofit public interest law firm representing the Brinkmanns, said the family has 90 days to petition the Supreme Court.

Because the Supreme Court doesn’t meet during the summer, the application will be accepted or denied in fall 2024. Between 5,000 and 7,000 petitions are filed each year and the court typically hears about 80, according to its website.

In his dissent, Menashi points out that the ruling breaks with other court decisions, including a 2010 Connecticut Supreme Court ruling that found the town of Branford violated the constitution by seizing land for sports fields to stop an affordable housing project.

“This is the kind of case they are interested in because it creates a split of authority,” Redfern said, highlighting Menashi’s dissent. “It puts a lot of wind in our sails.”

The Institute for Justice has had 12 petitions heard by the U.S. Supreme Court since the firm's inception in 1991, according to spokesman Phillip Suderman.

Hank Brinkmann said Wednesday that Southold acted in “bad faith” and should the ruling stand, it would set a “dangerous” precedent.

“No one’s property will be safe from government overreach and abuse,” Brinkmann said.

Reached by phone Wednesday, Southold Town Attorney Paul DeChance said the court decision was "powerful" but declined to comment further, citing ongoing litigation.

James Catterson of Pillsbury Winthrop Shaw Pittman, the Manhattan firm representing Southold, said the circuit court ruling "vindicates" the town's actions to create a park. "It's the quintessential public purpose," Catterson said.

A federal court judge dismissed the Brinkmanns’ lawsuit in September 2022, prompting the appeal.

In December 2022, New York State Supreme Court Judge John J. Leo ordered the title for the land to be vested to the town, according to court records.

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