Wednesday, March 14, 2007

A property right to a public view?

  Can a “view” be considered public property that government should not be able to take away through land use decisions?  In New Jersey, a group is suing the state over a plan to build a memorial to 9/11 inLiberty_state_park Liberty State Park, across the Hudson River from the site of the former World Trade Center.  The group, Friends of Liberty State Park, asserts that the project would block views of the “sacred” site from the park, as well as interfere with use of the park for other purposes.  The lawsuit alleges various flaws of due process and public participation requirements.    

   Should certain “views” be considered part of the public trust that government cannot take away?  In California, the state courts in the 1980s ruled that Mono Lake is part of the traditional navigable waters public trust, and that the state government must take steps (which it has) to protect the lake from being shrunk by water transfers to other parts of the state.  In the Washington, D.C., area, there was a failed effort to try to stop Virginia from permitting the construction of large apartment buildings in Arlington, across the Potomac River, that are in the line of sight of the great vista from the Capitol steps, down the National Mall, through the Washington Monument, to the Lincoln Memorial.  Today, the distant apartments complete the vista, which is no longer quite as stirring.

   Although I sympathize with the idea of protecting historic vistas –- views that, once taken away, are hard to recover –- I suggest that this is the sort of issue that usually should be decided through the political process (and perhaps with the help of eminent domain, as in the case of the demolition of the private tower that once loomed over the Gettysburg Battlefield), not by the courts.

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