New York should seize Trump Tower

The Denver Post - - PERSPECTIVE - CATHER­INE RAMPELL

new york» roufrou Fifth Av­enue re­sem­bles a po­lice state.

Of­fi­cers wield­ing gi­gan­tic guns guard Trump Tower, where Pres­i­dent-elect Don­ald Trump con­ducts all tran­si­tion busi­ness, and soon lots of pres­i­den­tial busi­ness, too. Shop­pers pa­tron­iz­ing the stores, cafes or pub­lic gar­dens in­side must en­dure lay­ers of security screen­ing. Streets and side­walks are bar­ri­caded; traf­fic is snarled; and cos­tumed buskers milk money from the looky-loos ob­struct­ing the en­trances to Gucci and Tif­fany.

The chal­lenges of se­cur­ing this 58-story build­ing in a high-den­sity neigh­bor­hood will, by In­au­gu­ra­tion Day alone, drain $35 mil­lion of lo­cal tax­payer money. Who knows the ad­di­tional costs to com­merce and prop­erty val­ues?

The feds have thus far been stingy about foot­ing the bill. For­tu­nately, I’ve come up with a so­lu­tion that should warm the cock­les of the pres­i­dent-elect’s heart: New York should use emi­nent do­main to seize Trump Tower. Now hear me out. Emi­nent do­main — the con­sti­tu­tion­ally en­shrined gov­ern­ment power to take pri­vate prop­erty in ex­change for just com­pen­sa­tion — was tra­di­tion­ally re­served for road-and-school-style pub­lic projects. But thanks to a 2005 Supreme Court rul­ing, gov­ern­ments may now use this power to con­demn prop­erty if they can de­vise vir­tu­ally any use that bet­ter pro­motes “eco­nomic de­vel­op­ment” — kick­ing out poor peo­ple and build­ing lux­ury con­dos, for ex­am­ple.

On both left and right, al­most ev­ery­one hated that rul­ing. But not Don­ald Trump. Trump loves emi­nent do­main, es­pe­cially this rul­ing. He thinks it’s won­der­ful. And there’s no ques­tion why: Through­out his ca­reer, Trump has lob­bied gov­ern­ments to seize prop­er­ties from those who refuse to sell when he wants to build amuse­ment parks, golf cour­ses, of­fice build­ings and park­ing lots on their land. He be­lieves ex­pan­sive use of emi­nent do­main is nec­es­sary to pro­mote eco­nomic growth and “beau­ti­fi­ca­tion,” and that it’s even a good deal for prop­erty own­ers who don’t want to sell.

“When emi­nent do­main is used on some­body’s prop­erty, that per­son gets a for­tune,” he has de­clared. Well, that for­tune can soon be his. New York of­fi­cials prob­a­bly won’t take my ad­vice, since seiz­ing Trump’s prop­erty might ap­pear par­ti­san. (Man­hat­tan­ites voted against Trump by about 10 to 1.) But, ac­cord­ing to al­most every emi­nent-do­main scholar and lan­duse lawyer I con­sulted, if the city tried my strat­egy, courts would prob­a­bly up­hold it.

As Trump well knows, New York has one of the most ex­pan­sive emi­nent do­main laws in the coun­try, and has con­demned prop­erty as “blighted” for fairly flimsy rea­sons.

“The statu­tory lan­guage is so elas­tic, you can fit al­most any­thing into it,” says Jef­frey Rowes, a se­nior at­tor­ney at the In­sti­tute for Jus­tice. (The in­sti­tute of­ten rep­re­sents prop­erty own­ers in emi­nent do­main ac­tions, in­clud­ing an At­lantic City woman who fought ef­forts to turn her home into a limou­sine park­ing lot for Trump Plaza Ho­tel and Casino.)

The city doesn’t need to prove that Trump Tower is derelict to de­clare it “blighted”; the mere fact that it’s hin­der­ing traf­fic, im­ped­ing com­merce and drain­ing the pub­lic fisc could be suf­fi­cient. Then of­fi­cials just need to find some al­ter­nate use for the prop­erty — per­haps a Hamil­ton me­mo­rial? — that they could rea­son­ably be­lieve bet­ter serves the city’s in­ter­ests.

Of course, the city would have to pay Trump the fair-mar­ket value of the prop­erty, about $471 mil­lion.

If New York wants to cut its costs, how­ever, it could in­stead place a neg­a­tive ease­ment on Trump Tower, one that al­lowed Trump to re­tain own­er­ship but pre­vented any pres­i­dents or pres­i­dents­e­lect from liv­ing there. The city would have to com­pen­sate Trump for lost value to the prop­erty as a re­sult, but that would likely be small.

Fi­nally, if the city were es­pe­cially cheap (and cheeky), it could de­clare Trump’s ac­tive res­i­dence in Trump Tower a “pub­lic nui­sance.”

Lots of liberal elites be­lieve our pres­i­den­t­elect is a nui­sance. In this case, though, the term has a spe­cific le­gal mean­ing: any ac­tiv­ity or phys­i­cal con­di­tion that “ob­structs, dam­ages or in­con­ve­niences the rights of a com­mu­nity.” Crack­houses, broth­els, foul smells and block­ing of rights of way are com­mon ex­am­ples. So too might be scup­per­ing one of the world’s top shop­ping des­ti­na­tions and plac­ing a big ol’ ter­ror­ism tar­get on its back.

Some case law even sug­gests that if the city al­lows Trump to con­tinue to dam­age his neigh­bors, it will have ef­fec­tively taken the neigh­bors’ prop­erty with­out just com­pen­sa­tion. Which might sug­gest gov­ern­ment has an obli­ga­tion to act.

The best part about this “pub­lic nui­sance” strat­egy? The city could con­demn Trump Tower with­out having to pay Trump “just com­pen­sa­tion.” It wouldn’t owe him a dime, in fact. Hey, Trump did say the gov­ern­ment needs to

start driv­ing harder bar­gains. E-mail Cather­ine Rampell at cram­pell@wash­post.com. Fol­low her on Twit­ter: @cram­pell

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