A rendering of the proposed development. Photo by the author.

A condo building is planned for the site of the Exxon station at the bottom of the Exorcist Steps on M Street NW in Georgetown.  Residents on Prospect Street, just 75 steps above the site, fear the building will block their spectacular views of the Potomac.

But can Prospect Street residents, who undoubtedly paid handsomely for their views of the Potomac, have any say in a project simply because it might obscure their backyard views?

EastBanc, the developer, argues that they have a right to build this building within the “building envelope” allowed by the zoning code. That envelope cuts off part of the breathtaking views from Prospect Street houses.  Though EastBanc representatives promised to mitigate the obstruction, they noted that what they were building was permitted by law.

Moreover, they point out that most of the view will remain. Since the top of the proposed building will not be higher than any of the homes’ bottom floors (with one slight exception) all that will be obscured is the view of the river itself. Views of Rosslyn, the trees, the sky, and more will remain.

The residents, not surprisingly, have a different view. They think the building should be limited to four stories, not five, in order to preserve their backyard views.

This question really goes to the heart of a lot of zoning issues: do homeowners have a right to a view that they have grown accustom to? In English law there is a concept called “ancient lights,” which states that you have a right to a certain level of illumination so long as you have enjoyed that illumination for at least 20 years. 

"Ancient lights” allows you to prevent your neighbor from building anything that would block this light. This concept is really designed more for extreme situations like alley dwellings, not luxurious cliffside views. Moreover, US courts have definitively rejected the very concept of ancient lights in American law.

The question gets even more complicated in this case since the laws designed to provide quasi-ancient lights, i.e. zoning laws, would in fact permit this building without question. The only reason the project is being reviewed at all is due to the additional historic preservation review provided by the Old Georgetown Board (OGB), the neighborhood’s Federally-chartered historic preservation review body.

The OGB, however, is not tasked with the responsibility to protect private views. In fact, its very jurisdiction is limited to changes viewable from a public street. Nonetheless the ANC and others sometimes try to shoehorn zoning-type concerns into OGB review.

The ANC did not adopt another resolution on the matter and relied on the resolution passed in March, which criticized the project’s size and design. Notwithstanding this, there was a sense among the commissioners that they could support a design like this in the near future.

Cross-posted at the Georgetown Metropolitan.