Development
Do you have a legal right to a cliffside view?
A condo building is planned for the site of the Exxon station at the bottom of the Exorcist Steps on M Street NW in Georgetown. Residents on Prospect Street, just 75 steps above the site, fear the building will block their spectacular views of the Potomac.
But can Prospect Street residents, who undoubtedly paid handsomely for their views of the Potomac, have any say in a project simply because it might obscure their backyard views?
EastBanc, the developer, argues that they have a right to build this building within the "building envelope" allowed by the zoning code. That envelope cuts off part of the breathtaking views from Prospect Street houses. Though EastBanc representatives promised to mitigate the obstruction, they noted that what they were building was permitted by law.
Moreover, they point out that most of the view will remain. Since the top of the proposed building will not be higher than any of the homes' bottom floors (with one slight exception) all that will be obscured is the view of the river itself. Views of Rosslyn, the trees, the sky, and more will remain.
The residents, not surprisingly, have a different view. They think the building should be limited to four stories, not five, in order to preserve their backyard views.
This question really goes to the heart of a lot of zoning issues: do homeowners have a right to a view that they have grown accustom to? In English law there is a concept called "ancient lights," which states that you have a right to a certain level of illumination so long as you have enjoyed that illumination for at least 20 years.
"Ancient lights" allows you to prevent your neighbor from building anything that would block this light. This concept is really designed more for extreme situations like alley dwellings, not luxurious cliffside views. Moreover, US courts have definitively rejected the very concept of ancient lights in American law.
The question gets even more complicated in this case since the laws designed to provide quasi-ancient lights, i.e. zoning laws, would in fact permit this building without question. The only reason the project is being reviewed at all is due to the additional historic preservation review provided by the Old Georgetown Board (OGB), the neighborhood's Federally-chartered historic preservation review body.
The OGB, however, is not tasked with the responsibility to protect private views. In fact, its very jurisdiction is limited to changes viewable from a public street. Nonetheless the ANC and others sometimes try to shoehorn zoning-type concerns into OGB review.
The ANC did not adopt another resolution on the matter and relied on the resolution passed in March, which criticized the project's size and design. Notwithstanding this, there was a sense among the commissioners that they could support a design like this in the near future.
Cross-posted at the Georgetown Metropolitan.
Comments
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No.
You can make all kinds of arguments about trying to be reasonable and working things out, but in the end, there is no such right. Living in a big city means that your surroundings can change.
Your view can not infringe on the property rights of your neighbor.
by Jasper on Apr 7, 2011 1:05 pm • link • report
by wreckfish on Apr 7, 2011 1:11 pm • link • report
by charlie on Apr 7, 2011 1:19 pm • link • report
Its balderdash to claim the view is not really changed b/c the sights of treetops and building tops in Rosslyn are still visible. Everyone knows its the river view thats valuable on so many levels and definitions, including economically. Its the view of the river that causes the property to be worth 500k more (my guess?) not the veiw of Rosslyns trees and bldgs.
Because the view (of the river) is so valued I would ideally like to see that it is protected to be made available to as many people as possible. That would mean restricting the planned bldg to 4 stories (plus a rooftop deck) and otherwise maximizing availability of the view.
by Tina on Apr 7, 2011 1:22 pm • link • report
This is, at worst, a failure in zoning. If these people really cherished these views, they should have made sure that the views were protected in the zoning code. And they probably could have done that. But it's too late now, and they have no recourse.
Of course, I think a lot of zoning is bullshit and basically a way to institute a homeowners association on a neighborhood. This might sound horrible, but I don't think residents of a neighborhood should have the ultimate say in what can and can't be built there. I think basic rights should be protected, yes, but zoning should err extremely on the side of being permissive.
by Tim on Apr 7, 2011 1:27 pm • link • report
You don't have a right to things remaining unchanged forever. You may be disappointed that the expectations you bought with aren't fulfilled, but there isn't a right to having those expectations, as such, protected from all new-comers.
by MattR on Apr 7, 2011 1:42 pm • link • report
They could even continue to operate it as a gas station, or other low-height business, and collect revenue off of it.
Being Georgetown, I imagine that this might even be a practical option.
(If the residents somehow win out or collect money, I hope that the Korean meat warehouses in the Florida Market sue every developer in NoMA for destroying their grand viewshed of the Capitol Dome (which is actually quite nice and one of the best in the city). A victory in this case would be setting up a ridiculous precedent, even though this particular instance seems somewhat more clean-cut.)
by andrew on Apr 7, 2011 1:45 pm • link • report
by Jerome on Apr 7, 2011 1:46 pm • link • report
by Tina on Apr 7, 2011 1:49 pm • link • report
In the end I am not sure their is any legal basis for the residents claims, but if they could always sue and let the courts decide.
by Matt R on Apr 7, 2011 1:52 pm • link • report
by Tina on Apr 7, 2011 1:56 pm • link • report
by MattR on Apr 7, 2011 1:57 pm • link • report
by Jasper on Apr 7, 2011 1:58 pm • link • report
by Tina on Apr 7, 2011 2:14 pm • link • report
They bought a house with a view and a real risk that the view would be impinged, and now they want the city to make it more valuable by removing that risk. No one is taking anything away, it's just the probability of the risk has gone way up. Sorry. But that's how it goes when you gamble.
by David C on Apr 7, 2011 2:23 pm • link • report
by Johnny T on Apr 7, 2011 2:24 pm • link • report
The difference is that this case isn't about preserving a public view, it's about preserving a private view.
There are indeed places where public views have been preserved - and they have been codified in terms of legal easements and/or changes to the zoning code.
That does not appear to be the case here, in either regard. The views that would be impacted are private, not public. The project that would impact them is a by-right project within the existing zoning.
by Alex B. on Apr 7, 2011 2:27 pm • link • report
by Tina on Apr 7, 2011 2:29 pm • link • report
Still, for the sake of argument, if you think we should zone so that as many people have a view as possible, then I'd think we should allow lots of really tall buildings. I bet there are more people in Manhattan with a view of the Hudson than there are people in DC with a view of the Potomac.
by RichardatCourthouse on Apr 7, 2011 2:32 pm • link • report
Anyway, of course these views aren't protected.
by freely on Apr 7, 2011 2:32 pm • link • report
by Tina on Apr 7, 2011 2:36 pm • link • report
The steps don't really have a view, however. The view they do have is down the steps, and that view wouldn't be impacted by this development.
I'm not sure how that even matters, the residents of Prospect Street aren't concerned about the view from the steps.
by Alex B. on Apr 7, 2011 2:38 pm • link • report
I'm not sure how that even matters, the residents of Prospect Street aren't concerned about the view from the steps. Yes. I'm conceding the private vs. private view argument and now thinking about the public view from the steps.
by Tina on Apr 7, 2011 2:43 pm • link • report
by Johnny T on Apr 7, 2011 2:45 pm • link • report
That's not much of a river view to me.
Here's a better shot:
http://home.uchicago.edu/~lenka/images/exosteps3.jpg
I'm quite certain that nothing you see here would be obstructed by the proposed construction.
by Alex B. on Apr 7, 2011 2:46 pm • link • report
by Tina on Apr 7, 2011 2:48 pm • link • report
by Tina on Apr 7, 2011 2:51 pm • link • report
by TGEoA on Apr 7, 2011 3:08 pm • link • report
The developer of our building entered into negotiations with the owner of the smaller building to purchase the "air rights" above the smaller building. That deal was concluded successfully and now our condo association owns just the air above the other building.
I suppose if the residents of Prospect St had had the foresight they could have attempted to do likewise.
by JeffB on Apr 7, 2011 4:01 pm • link • report
If the residents want to come together and pay many millions to the owners of the land and to Eastbanc for their loss of income opportunity, so be it. They probably don't have the money as it would be many millions.
A downzoning would be a taking. And a protection of this particular viewshed wouldn't be as much for the public interest as for this private interest and could very easily be challenged legally.
I do think by the way that viewsheds, depending on what they are, can and should be protected. We (when I was on the ANC6C zoning committee) probably screwed up with regard to viewsheds of the Capitol building from points in NE vis-a-vis the Senate Square buildings, which ended up impinging on this particular viewshed, such as from 6th, 5th and 4th Streets in the Florida Market area.
by Richard Layman on Apr 7, 2011 4:25 pm • link • report
And in Hawaii, the USVIs and Aruba, for instance. The VIs is a funny case, because you can buy entire islands there (Hello Mr Branson). But even then, the beaches are public.
That's a different case than here though. A beach is a tangible piece of land, and the government can decide to sell it or not. Governments that are interested in developing tourism often find more value in leaving the beaches public rather than selling them.
For DC, is does not matter who has the view. Either people on Prospect will, or on M/Canal. The view is not a tangible property that is taxed, of value or disappearing. Therefore, there is no reason why the government would benefit one citizen over another. Hence, rules should be applied as they stand and the new property can be built as planned.
by Jasper on Apr 7, 2011 4:31 pm • link • report
by c5karl on Apr 7, 2011 4:54 pm • link • report
by ah on Apr 7, 2011 5:01 pm • link • report
by make things better on Apr 7, 2011 5:13 pm • link • report
by aaa on Apr 7, 2011 6:12 pm • link • report
by Lance on Apr 7, 2011 6:41 pm • link • report
by Lance on Apr 7, 2011 6:51 pm • link • report
by Johnny T on Apr 7, 2011 7:04 pm • link • report
On a more serious note, this case would be before the Old Georgetown Board, not HPRB, if I am not mistaken.
by William on Apr 7, 2011 7:41 pm • link • report
by Lance on Apr 7, 2011 7:56 pm • link • report
How is that? Do you see a 5 story massive building in that spot now? When you buy in a historic district you know that any change from 'what is' needs approval. You have the situation reversed. They're trying to expropriate the homeowners on the cliff who bought these homes with the knowledge that they would get a legal say in whether they could lose that view. What you're saying would make sense if these homes didn't have historic preservation protection. There's a reason property values usually increase when an area gets historic designation ... i.e. There's a legal basis for predictablity, stability, 'things staying as they are OR getting better, and most importantly, that you get a say as an 'affected neighbor' and as a historic district resident. It's the law.
by Lance on Apr 7, 2011 8:05 pm • link • report
by Lance on Apr 7, 2011 8:09 pm • link • report
What about a building of the exact same size and height, but built with appropriate historicist architecture?
You're arguing against a strawman that Topher never presented in his original argument. Topher asked if those residents on Prospect street have a right to their view they currently enjoy - you're asking an entirely different question.
by Alex B. on Apr 7, 2011 8:45 pm • link • report
http://maps.google.com/maps?f=q&source=s_q&hl=en&geocode=&q=georgetown+washington+dc&aq=&sll=37.0625,-95.677068&sspn=49.844639,114.169922&ie=UTF8&hq=&hnear=Georgetown,+Washington+D.C.,+District+of+Columbia&ll=38.904826,-77.070271&spn=0.000758,0.001742&t=h&z=20&layer=c&cbll=38.904906,-77.070337&panoid=HYxhb1dbPd50nd1BeR0y5g&cbp=12,355.57,,0,-0.96
In fact you can't even see a "Cliff". You can see a Gas Station, some trees behind it, the retaining wall by the exorcist stairs and the backs of non historic homes on the street above. But I give you props for conjuring up the imagery of Historic homes clinging cliffside. Furthermore reducing the height of the building 1 story wont change the view from the street much at all. The "cliff" would still be blocked as would the view of the houses that "cling" to it. The only thing that would change is the view from the first story of the homes to the water. Which is another point. Don't they still have water views on the upper floors of their homes? If I'm not mistaken they are only having the view cut off on the first floor. We are debating intervening here because 5 home owners will have altered 1st floor views...
by Johnny T on Apr 7, 2011 9:51 pm • link • report
But this is a historic district and I assume that HPRB will go with the developer with minor modification. Then the residents will file a notice of appeal of that decision to the DC Court of Appeals and obtain further concessions to drop the appeal.
Routine DC Kabuki theater.
by Tom Coumaris on Apr 7, 2011 10:25 pm • link • report
I doubt that would cut it with the OGB because the main problem with the proposal is the fact that the building changes the character of the skyline view of Georgetown as seen when approaching from the Key Bridge. This is a signature view ... one of a village built on a hill. Making the building more architectural interesting won't do anything to address the fact that the character of this signature viewshed is being radically changed ... nor the fact that you might not even see the hill once this is built ... and what you'll have in its place (as seen when approaching via the bridge) is a continuous span of 'building' from the base of the 5 story building to the tops of the houses on the hill. You'll be seeing 'big urban city' vs. 'quaint urban village' ... and that is 180 degrees counter to what the Old Georgetown Act is meant to preserver and protect.
by Lance on Apr 7, 2011 10:43 pm • link • report
by Lance on Apr 7, 2011 10:50 pm • link • report
Maybe if they agreed to housing some if the social services in this city, I'd be more sympathetic to their anti-everything approach. Some of these residents are still living in the decade their houses were built.
by Not surprised on Apr 8, 2011 7:08 am • link • report
by snowpeas on Apr 8, 2011 12:44 pm • link • report
I am familiar with the intersection in question and always wondered why a gas station occupied that site? As for the residents with the million dollar views looking south and west, they should have know that it wasn't going to be forever. They live in an urban setting views change all the time. Unfortunately, when they built or bought, their purchase didn't include what an owner could do with the adjacent parcels of land now occupied by a gas station. What will be even more interesting is the cost of the views for the new condos that will alter the view of the existing neighbors on the hill.
I'm also wondering what one will see at the bottom of the long stairs. Is there a name for those stairs other than the exorcist stairs?
by dcdotcom on Apr 8, 2011 1:58 pm • link • report
http://maps.google.com/maps?f=q&source=s_q&hl=en&geocode=&q=Key+Bridge,+Arlington,+VA&aq=0&sll=37.0625,-95.677068&sspn=27.699934,67.5&ie=UTF8&hq=&hnear=Key+Bridge,+Arlington,+Virginia&ll=38.903691,-77.069403&spn=0,0.00412&t=h&z=18&layer=c&cbll=38.90402,-77.06925&panoid=blRxKAvMmijrznFjPAqCUw&cbp=12,325.55,,1,-4.08
by Lance on Apr 8, 2011 7:44 pm • link • report
View Larger Map
by Lance on Apr 8, 2011 7:45 pm • link • report
by mtb on Apr 8, 2011 9:08 pm • link • report
by Jasper on Apr 8, 2011 10:01 pm • link • report
by Neil Flanagan on Apr 8, 2011 10:16 pm • link • report
by Rich on Apr 8, 2011 10:59 pm • link • report
by opp on Apr 8, 2011 11:56 pm • link • report
In this case no!
There doesn't appear to be any controlling statute or regulation that would support a right of cliffside view.
It is quite interesting to see arguments based on concepts from other jurisdictions as well as proposed compromises. My hope is that the condo is built as planned and there is no of right compromise. Why? Because I believe that the law and rules are necessary and should be followed. Litigation against the developer would only give more legitimacy to the idea that you can extort or bully away the rights of others if you have a lawyer.
Laws should be laws.
by CitizenZ on Apr 9, 2011 3:35 am • link • report
Most definitely. What you're not following is that the laws and rules in place here will most likely prevent a 5 story building from being built here.
I think the misconnect for most of you is the false question posed in the headline of this article. This case isn't about whether the people in these homes have a right to a river view. Of course they don't. But that said, because putting a 5 story building there would change the nature of the historic Georgetown skyline, the homeowners who bought there have a reasonable expectation - under the law - that a 5 story building will never be built there. The fact that it also saves their view is inconsequential to ensuring that that rules and the law is followed.
by Lance on Apr 9, 2011 9:55 am • link • report
Why do you insist on moving the goalposts?
by Alex B. on Apr 9, 2011 11:53 am • link • report
by Lance on Apr 9, 2011 1:15 pm • link • report
Actually the size and shape (including the height and number of floors) is clearly spelled out and not in question.
The "nature of the historic Georgetown skyline" stuff would only apply to the look of the project at the of right size and shape. I'm minimizing here but essentially architecturally detailing. The reason the Apple store had to look more like a store in Georgetown than a "normal" apple store.
by CitizenZ on Apr 9, 2011 4:04 pm • link • report
I don't think you understand how the historic preservation laws work. Just because the zoning code says you can build sometime of that size and shape doesn't mean you can if the property is located in a historic district.
When a property is located in a historic district, an applicant may have to go through 2 processes depending on what they are doing with the property. In this case, if the applicant wanted to get an exemption to the size or shape restrictions, they'd need to go before the zoning board to get a zoning exemption. But they're not proposing to build outside the zoning code's building envelope for that piece of property. So, barring any other 'not by right' things they're doing there that we don't know about, they don't have to go before the zoning board. However, they still need to get a signoff from the historic preservation review board simply because they are building within a historic district. I.e., they are making a change within the historic district in Georgetown. And in Georgetown this historic preservation review board is actually federal in nature (by special congressional legislation called the Shipstead-Luce Act) needs to go before the Old Georgetown Board.
by Lance on Apr 9, 2011 4:38 pm • link • report
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