Q: My wife and I purchased
a lot of land on which we built our house about 20 years ago. The
deed, for our property and other lots in the same area, specified that
the title was subject “in perpetuity” to the following restrictions:
| “The grantees agree that
the premises shall be subject to the more restrictive of the
terms of this deed or applicable provisions of the ordinances
and regulations of the town; “the grantees will not erect any
buildings upon the premises within seven feet of any boundary
line.” |
In 1997, the Zoning Board of Appeals
granted a variance allowing one of the property owners who is subject
to these restrictions, to erect a building that is only two feet and
four feet from the property lines. As a result, I lost my water view.
Is the township or the property owner, or both, liable for the damage
I’ve suffered – specifically, the reduced value of my property? And do
I have any recourse now?
A: The
courts do not tend to treat a view as a right to which property owners
are entitled. So unless you preserved your view through deed
restrictions that were properly drafted and recorded, the attorneys I
consulted agreed, you are not likely to win a court judgment ordering
the town, the other owner, or anyone else to compensate you for the
view you’ve lost.
Your letter also raises more specific questions about the nature of
deed restrictions and the procedure for granting variances. But this
discussion does not particularly favor your position, either, my legal
sources said. The language suggesting that the deed restrictions will
apply “in perpetuity” certainly sounds binding, but such provisions
typically are viewed as contrary to public policy, given the
likelihood that the statutory framework will change over time. So the
courts usually will put a time limit on use restrictions, even if the
deed says they are “perpetual.”
On the variance issue, in the normal course of things, the zoning
board (in this case) would have notified abutters of the variance
request and given them an opportunity to object before issuing a
decision. If you had an opportunity to object to this variance five
years ago and failed to exercise that right, then you are probably out
of luck now. As a first step, you should review the board’s
procedures, which tend to have very specific deadlines for testimony
and appeals, and see if you still have a right to object, at his late
date. If that opportunity still exists, you should look (or, better
still, have an attorney look) at the board’s decision, to see if there
was anything inconsistent or inappropriate about the variance
approval. If there is a basis for objecting, and if you have not
forfeited your right to do so (after five years, the odds are
reasonably good that you have), then an attorney can tell you how best
to proceed.
