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A Property Owner Has No Constitutional Right to Stop the Construction of a Neighboring Home that Obstructs Her Water View

If a local zoning code does not protect the water view from your home from obstruction by the construction of a “McMansion”, can you turn to the federal courts for relief? A federal court ruled this summer in Puckett v. City of Glen Cove, 2009 U.S. Dist. LEXIS 58479 (E.D. N.Y. June 30, 2009), that a property owner had no constitutional right to prevent the construction of a large home that would block her water view.
The plaintiff, Michele Puckett, lived at 3 Prospect Avenue in Sea Cliff, New York. Her home, which sat on a bluff along the municipal boundary between the Village of Sea Cliff and the City of Glen Cove in Nassau County on Long Island, provided her with a view of the marina and waters of Glen Cove Creek and Hempstead Harbor. In 2005, Frog Hollow purchased the property at 6 Prospect Avenue, which was across the street from the plaintiff’s home and between her home and the creek and harbor. The property at 6 Prospect Avenue was located in Glen Cove.
Frog Hollow submitted an application for a building permit and requested a side yard variance from Glen Cove. After the plaintiff and other neighbors voiced opposition to the proposed construction, Frog Hollow withdrew the variance request and submitted a building permit application that did not require a variance. Glen Cove then decided to amend its zoning code, which would have prevented the Frog Hollow construction, but a building permit was issued before the zoning amendments took effect. The initial building permit was later revoked, but after an opinion was issued by the Glen Cove City Attorney, a new building permit was issued. The plaintiff then sought to block the construction through the filing of a lawsuit in state court, and after that action was dismissed for failure to exhaust administrative remedies, she filed her federal court action against the City of Glen Cove and its City Attorney and Building Department Administrator.
The plaintiff’s federal court action claimed six constitutional claims pursuant to 42 U.S.C.S. § 1983. She alleged a violation of her Fourteenth Amendment right to Equal Protection because of selective enforcement and disparate treatment of the laws of Glen Cove. She alleged a Substantive Due Process violation because of the arbitrary issuance of the initial building permit in violation of the Glen Cove Building Cove, and she alleged a Procedural Due Process violation as a result of the issuance of the second building permit. Plaintiff alleged a violation of her First Amendment rights, claiming that the defendants permitted the construction to proceed in retaliation to her expressed opposition to the project. In addition, her final two causes of action alleged the existence of a conspiracy, custom, and practice between the Defendants to deprive her of her constitutionally protected rights.
The court granted the motion to dismiss of the defendants as to all claims except the First Amendment retaliation claim. As to that claim, the court found that the issue as to the motivation of the defendants, which was an element that the plaintiff had alleged and was required to prove, could not be determined in a motion to dismiss. Thus, the First Amendment claim was allowed to proceed to discovery, and defendants could seek summary judgment on that claim after discovery.
The court pointed out that in the typical due process zoning case, a plaintiff would argue that it was denied the issuance of a building permit in violation of substantive or procedural due process. In this case, though, “the protected property right or entitlement, forming the basis of Plaintiff's due process claims is not a right to build on her own land, but is either: (1) a right to an unobstructed water view, or (2) a right to prohibit a nearby landowner from building on his land.” The court found that neither right existed under the Constitution.
Relying upon Second Circuit precedent, the court held that plaintiff had no right to maintain the water view from her house because “a person cannot claim a constitutionally protected property interest in uses of neighboring property on the ground that those uses may affect the market value of plaintiff's property." The court noted that the Second Circuit had ruled that a "governmental action causing a decline in property values has never been held to deprive a person of property within the meaning of the Fourteenth Amendment."
Furthermore, the court found that the plaintiff did not have a property right in the prohibition of a building permit to a neighbor. Glen Coves’ “discretion in the permit process negates any holding that a property right to such a grant or denial exists. There can be no question but that Defendants possessed the discretion to grant or deny the permit sought by Frog Hollow. This discretion negates the argument that Plaintiff has a constitutionally protected property interest in the denial of a permit to her neighbor.”
Obviously the plaintiff was at a practical disadvantage because she resided in a different political subdivision than the local government that issued the building permit and controlled the zoning process. Although some states have statutes that protect the existing aesthetic views of property owners, there was no New York statute for the plaintiff to rely upon. In addition, although the very large home built by Frog Hollow was out of character with the rest of the neighborhood, which were much more modest homes, the plaintiff did not allege that the “McMansion” was a nuisance. Finally, although the water view has personal aesthetic value to the plaintiff, one has to ask if the alleged decline in her property value by the loss of the water view exceeded the potential increase in her property value because she now was directly across the street from a much more valuable house.