Since we were small children, we have wanted the best seat in the house. If you have an older brother or sister, you probably have scars that remind you of sibling battles over the coveted window seat in the family station wagon and in airplanes. We never lose that desire, and over the past few decades, there have been several lawsuits over scenic views, or lost scenic views.

Often, these suits are filed in ocean-front communities. One person owns a house with a great, uninterrupted ocean view, until some "moron" moves between the aggrieved and the million dollar view. Of course, the victim usually forgets that at one time, he was the moron who moved between another person and that person's then "great view."

Everyone wants a great view. And when people finally get it, they often don't want anyone else to have it. City dwellers face similar challenges. A penthouse view can be worth a fortune, until a new, taller high-rise is constructed. Sometimes people also fight to protect wooded views, or views of mountains or canyons.

When people have a great view, they often fight to protect it. This is what lead to the recently decided case of Hartz Mountain Industries v. the New Jersey Department of Environmental Protection., which was decided earlier this year. At issue in this administrative law case was an attempt by Hartz Mountain to build right on the Hudson River, which would have diminished a very famous public view of the New York skyline.

Hartz Mountain owns property along the Hudson River in Weehawken, New Jersey. That property is currently vacant and because it is vacant, millions of New Jerseyeans are able to view the skyline from an exceptional vantage point as they approach the Lincoln Tunnel to cross from New Jersey into New York. Many residents and tenants in nearby office buildings also have the benefit of the view.

Hartz Mountain proposed to construct two office buildings on the property. If they were erected, the view would have been largely eliminated. An environmental group called the American Littoral Society believed that this view was very important and challenged Hartz Mountain's application for a development permit that was required from the New Jersey Department of Environmental Protection.

The State concurred that the permit should not be issued because construction would ruin the view. Recently, a New Jersey administrative law judge agreed that New Jersey properly withheld issuance of the permit.

The judge found that the proposed construction was not "visually compatible" with the existing scenic resources. He also ruled that the development would detract from the "signature view" of the Manhattan skyline by eliminating the contrast with relatively low rise development.

The judge held that New Jersey law is intended to protect these "marvelous viewing opportunities." In upholding the permit denial, the judge ruled that it is better to require Hartz Mountain to redesign the proposed building now rather than to "needlessly destroy an important regional asset."

At least for now, Hartz Mountain cannot build a new mountain, and New York bound commuters will continue to enjoy their first class view of the best known skyline in the world . Appeals are sure to follow and we may not have a final outcome for many years.

While the result will make many people happy, this is a thorny issue that will creep up with increasing frequency as pressure for developable property increases. There are always two sides to these debates. When people purchase valuable, waterfront property, they are sure to believe that they have a justifiable expectation that they will be able to develop their property and to maximize their view. After all, what good is waterfront property without use of and enjoyment of the water. Isn't the view why waterfront property owners will pay twice the fair market value in the first place?

Blocking development to protect a view is a great idea for everyone --except the poor guy who owns the property and cannot fully realize the fruits of his/her investment. In this case, the poor guy happens to be corporate giant Hartz Mountain, but Hartz Mountain should enjoy its property just as much as any other purchaser.

Laws which promote preservation of public views are found throughout the country. Pennsylvania's Constitution even guarantees scenic preservation.

What is the solution to these complex issues? Usually, the solution is found by balancing everyone's interests to the extent possible. Waterfront property owners should have a reasonable view and efforts should be made to ensure that this happens. On the other hand, the public should be left with a quality, meaningful view as well. Where a balance is not possible, the government should consider purchasing the property, or a portion of it , to ensure that public enjoyment continues.

Published: November 4, 1999

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Stuart Lieberman, Esq. writes about environmental issues. He was a New Jersey Deputy Attorney General assigned to the State Department of Environmental Protection from 1986 to 1990. Currently he is a shareholder in the environmental law firm of Lieberman & Blecher, P.C., located in Princeton, New Jersey. Stuart can be reached at slieberman@liebermanblecher.com.