This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
NEW YORK • Froufrou 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 land-use 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 presidents-elect 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 president-elect 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.
Catherine Rampell's email address is crampell@washpost.com. Follow her on Twitter, @crampell.