Predictably, the New York Times has come down on the side of Columbia University in commenting on the Kaur case in which the New York Appellate Division struck down Columbia’s effort to acquire land in Manhattanville for the expansion of its campus. The editorial is at http://www.nytimes.com/2009/12/14/opinion/14mon3.html?_r=1&ref=opinion
Much could be said about what’s wrong with the Times’ take on this subject. But for now, suffice it to say that the Times editorial argues that the Kaur decision is “out of step with eminent domain law,” when in fact the Appellate Division opinion is largely fact-based. It does not purport to overrule New York law. It only takes note of the faulty procedures used by Columbia, the condemnor (N.Y. Empire State Development Corporation), and their consultants, and the lack of a factual predicate for the desired taking. New York law may permit the condemnation of blighted urban land, but the land must first be determined to be blighted, and that determination must be based on properly established facts, not on a condemnor’s or an influential redeveloper’s desire to seize somebondy else’s land and build on it. And that’s where the Times editorial goes wrong. The Kaur opinion makes clear that Columbia and its allies simply set out to take the subject land but never established properly that it was blighted. This caper brings to mind Justice Holmes’ famous observation in the Pennsylvania Coal case that the fact that the public may want something very much is not a proper basis for taking constitutional shortcuts. In this case, it isn’t even the public — it’s Columbia, a private elite educational institution that tries to gain by taking unfair advantage of property owners in the area it covets.
Perhaps more important, the Times editorial fails to note the the Times has a conflict of interest here. The Times is itself a beneficiary of a redevelopment taking. Its headquarters are located on a site that was condemned by the New York State Urban Development Corporation, the same condemnor that is now trying to do Columbia’s bidding in Manhattanville. The Times got a sweetheart deal on that one, that included public subsisdies running into tens of millions of dollars. See West 41st Street Realty, LLC v. N.Y. State Urban Dev. Corp., 744 N.Y.S. 121 (N.Y.App.Div. 2002). You can read about the aftermath of that taking, and how poetic justice was eventually meted out to the Times, in our article, Bad News for the Times, Los Angeles Daily Journal, March 20, 2009, at p. 6.
That conflict of interest did not prevent the Times from cheering editorially for the wretched Kelo decison when it came down in 2005, but at least the Times had the decency at that time to point out its conflict of interest. This time it hasn’t bothered to do so — this particular conflict of interest evidently is not considered fit to print. Whatever happened to the journalistic mantra that the public has a right to know?