A Room with Our View

Facts:

Tired of the constant Wessex rain that her husband Jude loves, Tess decides to build a getaway seaside home in sunny Georgia.  After months of searching, she finally locates the perfect spot nestled among a row of similarly situated houses in Hurricane Cove.  Because financing is not an issue, all that Tess needs to begin construction is a building permit.  Although the city council is initially enthusiastic about granting the permit, at the public hearing on it Mayor Henchard argues against approval.  He lives in the neighborhood and knows how much residents and visitors alike enjoy viewing the ocean as they drive by the vacant lot.  Accordingly, the city council decides to approve the permit on the condition that Tess modify her plan to leave thirty feet of open space on either side of the house and grant a permissive easement so that the public can walk across the beach behind her new home.

Although disappointed that the house will no longer have room for several guest bedrooms that she had hoped to rent out while away, Tess is furious that she will not be able to enjoy her own private beach.  Instead of being able to unwind with a cool glass of lemonade basking in the warm glow of the sun, Tess will face constant interruption from noisy tourists moving from beach to beach.  Therefore, the next day she calls Ben, her favorite gray-suited Atlanta lawyer, to inquire whether the city can actually require her to grant an easement.  After listening to her story, Ben determines that Tess had a pretty good case and suggests that she file suit.  Do you agree?

You Be The Judge!

Option A:  Yes, a city does not have the power to impose conditions on a construction project unless specifically granted to it by statute or in a city ordinance.  Here there is no evidence that the state or city gave the council such power. The court should rule this way.

Option B :  Yes, requiring the easement constituted a taking that the city may only do if it is for the public good and if it pays Tess just compensation. The court should rule this way.

Option C :  No, the city may impose any condition that is in benefit of the public’s health or welfare.  Here, the public’s interest in accessing the beach supersedes Tess’s property rights because there is no current structure on the land. The court should rule this way.

Option D :  It depends whether the court determines that the condition imposing the easement is roughly proportional to the public’s interest in crossing the beach. The court should rule this way.