The owner of a Miami Beach hotel—Setai Hotel Acquisition LLC–is suing the city over a zoning change. Zoning officials approved a change that would allow BHI Miami Limited to make additions to a building it recently purchased. Setai claims that the additions will block ocean views in many of its rooms, those views are a property right, and this constitutes a taking. Setai is wrong.
The right to property means the freedom to produce, trade, and use material values. It means the freedom to act on one’s own judgment in regard to material values. A view is not a material value, nor can it be owned.
The freedom to use and trade material values includes the right to exclude. An owner can require those entering his property to wear a green shirt, refrain from smoking, speak only Latin, or anything else he desires. The owner can set the terms and conditions regarding how others use his property, and each individual is free to accept those terms and conditions or go elsewhere. In other words, the owner can exclude those who refuse to accept his terms and conditions.
Scenic views can be a value, and an owner has the right to establish the terms and conditions for using his property to enjoy that view. However, he cannot exclude others from enjoying that view from vantage points not on his property.
To put this in a different perspective, consider a movie theater. A movie theater provides a view—of a movie. The owner can set the terms and conditions for enjoying that view in his building, but he cannot prevent others from offering a similar view. His control ends at the boundary of his property. One can own a room with a view, but one can’t own the view.
Certainly, blocking the ocean views from Setai’s building will reduce the property’s value. But in and of itself, reducing the value of another’s property is not a violation of one’s property rights. The crucial issue is how that reduction occurs.
When one damages another’s property through negligence or force, one has prohibited the owner from acting on his judgment. Neither BHI nor the city of Miami Beach are using force. Indeed, in giving BHI a zoning variance, the city gave the company a little bit of freedom to act on its judgment.