Zoning in baseline hell: How landowners get a sense of entitlement to their neighbor's land

Zoning is an area of law stuck in a conceptual space that I call "baseline hell," a space in which, because social norms about entitlement are contested, any change in the status quo can be painted as either the exercise or invasion of private rights. In zoning disputes, for instance, residential land users assume that they have a quasi-property easements over neighboring landowners' lots, even when the very existence of the easement is the result of the burdened landowner's exercise of their own property rights.

Take, for instance, the Brooklyn Heights neighbors of the Pierhouse, a luxury apartment building now being erected next to Pier 1 by the Toll Brothers in the Brooklyn Bridge Park. The development is providing hefty funding for the park next door: The combined ground lease and payments in lieu of taxes (both dedicated to the upkeep of the park) add roughly a $1.50 per square foot to the common charges paid by owners.

The new structure also imposes costs on the neighbors in Brooklyn Heights: It blocks their view of the Brooklyn Bridge. On one view of the baseline of entitlement, the developer appears to have harmed the neighbors with a nuisance-like cost. But appearances can be deceptive in baseline hell: The view that the neighbors seek to preserve was actually created by Toll Brothers when they demolished an old warehouse that stood on the site now being developed for apartments. The view to which the neighbors now claim they are entitled existed only from 2010 (when the developer broke ground) to 2014 (when the Pierhouse reared its stories next to Squibb Park. In effect, the Brooklyn Heights homeowners want a scenic easement that would not exist but for the very development that they want to stop.

At various public hearings, the neighbors are vociferous with righteous wrath about Toll Brothers' blocking the view that Toll Brothers created, apparently on the theory that, sometime between the the time that the dust settled on the old warehouse rubble and the moment that an "I" beam blocked the resulting view, they developed a vested right to the unobstructed vista. But is there some less partial way to determine who is invading the rights of whom? Are the neighbors trying to confiscate Toll Brothers' investment with zoning restrictions, or is Toll Brothers imposing a nuisance on the neighbors?

As I explain after the jump (with a little help from a paper by my colleague Adam Samaha), there is no easy way to answer this question. Welcome to baseline hell.

One might attempt to resolve the conflict between the neighbors and Toll brothers by pointing to the hoary old legal idea, expressed by lots of cases (here's a recent one) that no one has a vested right to the continued existence of a zoning category. Landowners and neighbors should count on laws' changing. So Toll Brothers wins? The neighbors counter that Toll Brothers might have built their structure higher than their initial agreement with Brooklyn Bridge Park. A deal's a deal: Score one for the neighbors? But Toll Brothers notes that Hurricane Sandy required bulkheads that unexpectedly raised the structure in a way that the RFP did not anticipate, requiring Toll Brothers to rely instead on the zoning code, which allows the additional height. So Toll Brothers wins after all?

The problem is that NYC zoning rules are so complex that any intuitive sense of baselines is lost in a miasma of sky exposure planes, height factors, and other NYC Zoning Resolution verbiage. In a rough and ready way, this legal complexity leaves three different and competing types of baselines in the zoning context:

(1) The actual legal status quo (what land-use types call "the zoning envelope"),
(2) The actual uses physically present on the ground (which the neighbors latch on to as their property entitlement, regardless of what legal doctrine might say), and...
(3) what Adam Samaha calls a "process" baseline -- that is, the zoning change that is produced by the normal operation of the local administrative and legislative process.

This last sort of "process baseline" is rooted in the intuition that a change in legal classification emerging from the ordinary operation of expected legal processes is, in the eyes of the law, no change at all: It is the change that everyone ought to have expected. In the case of the Pierhouse dispute, no rational homeowner could have expected that the under-used, shabby warehouses that occupied prime waterfront for years prior to the creation of the Brooklyn Bridge Park would or should have remained the land-use status quo. The whole point of the zoning process is to update obsolete zoning categories created when (for instance) Brooklyn was, prior to the Container Revolution, a center of heavy industry.

One might conclude, therefore, that the Brooklyn Heights neighbors are behaving unreasonably when they angrily denounce Toll brothers for taking scenic easements that those neighbors could not reasonably expect to monopolize.

This interpretation of the relevant baselines, however, ignores the tendency of the zoning code to reward outrage about change. The ordinary and expected strategy for influencing zoning decision-makers is to flood the hearing room with one's booing and hissing opponents of change in the physical status quo. The refrain of such opponents of Baseline #3 is that Baseline #2 is the right and proper baseline defining the truly just expectations, because the normal operations of legal processes would produce results incompatible with the existing physical status quo. If enough people show enough outrage, then prudent zoning decision-makers (often elected officials or people who serve at elected officials' pleasure) may choose Baseline #2. If not, then Baseline #3 rules.

Adam Samaha refers to clashes between Baseline #3 and Baselines ##1-2 as "process-results" combinations. As a friendly amendment, I would suggest that the American zoning process is intended to produce such conflicts between proponents of different baselines, so that astute political decision-makers can see which way the wind is blowing.

In short, insofar as zoning is concerned, we live in Baseline Hell by design. From the point of view of a New York City Community Board member or developer's lawyer, I guess it must be tedious to listen to so much outrage devoted to so little purpose. But for law profs who teach and study zoning, it is nothing but fun, so I am not complaining.