Does the editorial board of the New York Times really have the stones to start off its latest editorial about the Takings Clause, “Where Is the Taking?“, with this:
When a city condemns private property to make way for a public highway, that is a classic “taking” for which government must provide “just compensation” under the Constitution’s Fifth Amendment.
Seriously, Times? How about when it’s not a “classic” taking, and the city condemns an entire block of urban private property to make way for the 52-story office headquarters of a large corporation … say, for example, a newspaper with the initials “NYT?” Would it be a “classic” exercise of power to use emient domain to take property so that:
A high rise office tower would be built at Site 8 South providing the Times with a new headquarters, as well as providing 700,000 square feet of space for other office tenants. The tower would additionally include condominiums, a new subway entrance, mandatory ground-floor public amenities, a 350-seat auditorium, a gallery and retail space. Witnesses at a public hearing conducted by ESDC in 2001 testified that this project would keep the Times headquartered in Times Square, add needed office space, create employment, increase retail revenue, attract further economic improvement to the larger area, and address a critical shortage of commercial space.
In West 41st Street Realty L.L.C. v. New York State Urb. Dev. Corp., 744 N.Y.S.2d 121 (App. Div. 2002), the court rejected the property owners’ claims the taking for the benefit of the Times lacked public use:
Petitioners argue that the proposed taking should be barred because the benefit inures to a private party, viz. The New York Times. They also allege a taking in violation of due process protections of the state and federal constitutions on the ground that the UDC itself created any “blight” which justifies condemnation since the UDC made it impossible for the owners to reap the value of their land during the last twenty years.
In other words, the paper was “too big to fail,” and keeping the Times in New York quallified as a public use supporting a taking.
What this tells us is that when the Times waxes poetic about Fifth Amendment issues — invariably in favor of the government and against the property owner — you’ve got to take its opinion in context and understand that with its history as a private beneficiary of eminent domain, it invariably gets the issue dead wrong. See its editorial regarding Arkansas Game & Fish, for a recent example. We’re not suggesting the Times shut up on the subject, only that it needs to remind its readers that it has a dog in the hunt. A very big dog.
The Times‘ latest is about last week’s oral arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). This one is about regulatory takings, not direct appropriation, but the editorial board still doesn’t get it right. We filed an amicus brief in Koontz in support of the property owner/petitioner. But, unlike the Times, at least we disclose our bias.
Following the lead paragraph quoted above, the editorial wrongly paints the regulatory takings doctrine as a creation of a “divided Supreme Court” “[o]ver the last few decades:
Over the last few decades, a divided Supreme Court has extended property rights at the expense of community interests by expanding the “takings” concept to include regulatory actions that are “functionally equivalent” to direct appropriation. These might include actions that render the property essentially worthless, undermine an owner’s right to keep it private, or greatly limit its use.
Metamessage alert: in other words, the regulatory takings doctrine is a recent ideological product of those nasty conservative activist judges that we all know and dislike. But can a doctine that was recognized nearly a century ago by an 8-1 Court (as far as we can tell, only Justice Brandeis dissented from Holmes’ opinion in Mahon) be accurately described as arising “over the last few decades” by a “divided” Court?
But even assuming what the editors really meant to refer to was the muddle that regulatory takings doctrine has become in the years since Mahon, and the divided courts in Nollan and Dolan, is it really that obvious that Koontz is a slam-dunk “why are we even in this case” situation, as the editorial suggests in the remaining paragraphs? According to the Times, Koontz’s cardinal sin is that he only offered to mitigate the impact his proposed development would have on wetlands (which would affect only his privately-owned wetlands as far as we can tell) by offering to preserve the remaining wetlands that he also owned, and not donate to the effort to preserve other wetlands owned by the public:
This kind of mitigation under environmental law is common in cases involving statutes protecting clean water and endangered species. The family offered to preserve 11 acres that it owned, but the water management district rightly said that preserving what already existed was not mitigation.
As Professor Epstein pointed out, this reveals the only way that the denial of the permit on the basis that Koontz did not offer to preserve wetlands owned by the public cannot be deemed a taking is for the court to say that the state has a preexisting “environmental easement” over all private property such as Koontz’s. The Times‘ editorial concludes:
The Koontz family sought monetary compensation, but as the justices noted, the district has not condemned an iota of the land and has not required the family to do anything to its property. It simply denied the family a permit for development.
That was the gist of the Florida Supreme Court’s ruling in favor of the district. The United States Supreme Court should uphold that decision, blocking efforts by the family and its ideological allies to stretch the notion of a regulatory taking far beyond any defensible limits.
The jury is still out, and we can only hope that the board is as wrong about Koontz as it was about Arkansas Game & Fish. The Bee Gees can try to understand the Times, but we sure can’t.