Legally Entitled to Water Views

Are You Legally Entitled to a View of the Water with Waterfront Property Rights?

Waterfront property owners universally appreciate a view of the water.  The soothing, lovely, even at times mesmerizing, glassy smooth prospect is a chief reason why land on the water commands pricing 25% to 45% above off-the-water comparables.  There are of course other amenities at waterfront property, among them the recreation amenity and the navigation amenity. 

Can a neighbor block my view of the water?

The difficulty comes when a waterfront property owner builds a pier, to enjoy her recreation and navigation amenity, but that pier interferes with the neighbor’s view, recreation and/or navigation amenity.  Frequently, the waterfront property owner, when selecting the location for the pier, and the design of the pier, makes choices that maximize her view with little regard for how those choices affect her neighbor. 

In this conflict, are you legally entitled to a view of the water? Let’s now explore how waterfront property rights and the law of riparian property rights reacts to this user conflict. 

Both Parties Have Waterfront Property Rights

Assuming that both properties extend to the mean low-water mark, that the water body that adjoins their properties has bottomland that is owned by the Commonwealth of Virginia, and that the riparian property rights have not been “severed” at either property, then the starting place is to recognize that riparian property rights (waterfront property rights) attach to both properties.   

Waterfront Property Rights/Riparian Property Rights Explained

Firmly established Virginia caselaw holds that five specific features comprise riparian property rights in Virginia:

1. The right to enjoy the natural advantages conferred upon the land by its adjacency to the water;
2. The right of access to the water;
3. The right to build a pier out to the navigable part of the water;
4. The right for the size of your property to expand through a natural process called “accretion”, or to reduce through natural “erosion”; and,
5. The right to make a reasonable use of the water as it flows past or washes up on the land.

I describe these five rights in detail in my article, “Riparian Rights Explained – What are Riparian Rights in Virginia”.   

Perhaps foreshadowing how a competition will be decided, when one owner’s interest in building a pier, which invokes the recreation and navigation amenities, will fare against the neighboring owner’s view amenity, the right to build a pier is expressly granted in the third of the five rights whereas the view amenity receives protection only if it can be inferred from the first of the five rights (the right to enjoy the natural advantages conferred upon the land by its adjacency to the water). 

Shutterstock: Tobin Akehurst

Importance of the Riparian Area

The waterfront property owner’s riparian property rights exist exclusively within a footprint in the water adjacent to the land known as the riparian area.  I describe the riparian area, including that only a Circuit Court can establish the riparian area, in my article “Riparian Rights for Establishing a Riparian Area Under Virginia Law”.   A common misconception is that the side boundaries of the riparian area are formed by an extension of the side boundaries of the upland parcel.  Although it is true that the side boundaries, as opposed to the shoreline boundary and the boundary formed by the line of navigation, are normally straight lines, they are rarely, if ever, a straight line extension of the side boundary of the upland parcel. 

Stated another way, the upland property lines do not extend into the water.

Do Waterfront Property Rights Protect My View of the Water?

For most practical purposes, it is quite difficult for a waterfront property owner to protect her view amenity as against a neighbor who wants to build a pier that will partially obstruct her view. 

Perhaps the indifference to protecting the view amenity flows from the way that Virginia courts interpret and apply the five components that make up the waterfront property rights under Virginia law, as was previously noted in this article.

Protecting Waterfront Views Struggle to be Accepted

In other, non-riparian, contexts, the view amenity likewise struggles in vain for acceptance.  In November of last year, the Norfolk Circuit Court, in the case of Patterson v. Gardner, case no. CL22-10435, refused to protect the landowners’ view amenity as against a neighbor who built a fence that blocked their view of Willoughby Bay.  In holding that it was permissible to build the fence, the Court reviewed several cases, some reaching back to the 1600’s, all of them addressing user conflicts involving the view amenity. 

The Court quoted approvingly from a case decided in 1752, where an English Justice stated:

“Why may not I build up a wall that another man may not look into my yard?  Prospects may be stopped, so [long as] you do not darken the light.”    

How Do Waterfront Views Fare When a Neighbor Wants to Build a Pier?

Our experience gained over many years, representing scores of clients on both sides of the issue, suggests that Virginia law routinely subordinates the view amenity to the recreation and/or the navigation amenity.  The result in nearly all cases is that the person opposing the neighbor’s application to build a pier will lose unless he or she relies on something other than, or in addition to, the view amenity as the basis for the opposition. 

VMRC and Protecting the Waterfront View Amenity

One reason for this is that the Virginia Marine Resources Commission (VMRC) is the forum where this user conflict is decided in the first instance.  Our attorneys have appeared before the VMRC numerous times, have argued the issue both for and against, and have observed numerous additional VMRC hearings where this user conflict is the central issue.  Our experience is that it is very difficult to gain traction at the VMRC with an argument that seeks to protect a person’s view amenity.  Arguments against construction of pier based on protecting the navigation amenity (e.g. the pier will block access to a navigation channel) or the recreation amenity (e.g. the pier will interfere with swimming, fishing and the like) are treated with greater respect, provided of course that facts are available to support those arguments.

Some may think that the VMRC decision is not the last word on the matter, and that these issues can be aired out in a lawsuit.  In nearly all instances they would be wrong.  Remember, it is an application to build a pier that, in the first instance, brings the user conflict into focus at the VMRC.  The reason for this is that the VMRC is the agency that adjudicates permit applications to build a pier.  The only path into Court in nearly all cases where the view amenity is at issue is the one involving a Circuit Court review of a VMRC decision on a pier. 

Circuit Court Upholding VMRC Decisions

A person “aggrieved” by a decision of the VMRC has the right to have a Circuit Court review that decision but, importantly, the deck is heavily stacked in favor of upholding the VMRC decision – whatever that VMRC decision may have been – because Virginia law requires the Circuit Courts to defer to the VMRC decision unless the aggrieved party can show, on the basis of the documents in the administrative record as compiled by the VMRC, that there is no “substantial evidence” to support the VMRC decision.  For a typical example of judicial deference to the VMRC, please refer to Palmer v. VMRC, 48 Va. App. 78, 628 S.E.2d 84 (Va. Ct. of Appeals, 2006).  The situation is perhaps best summed up by a Virginia Circuit Court Judge who said (paraphrasing):  The case books are littered with Appeals Court decisions reversing Circuit Court Judges who overturned a decision of the VMRC.  

Riparian Property Rights Offer Little Protection for Waterfront Views

The bottom line, then, is that the VMRC is the first body to decide the user conflict between a waterfront owner who claims her view amenity will be harmed by a neighbor’s intention to build a pier.  The VMRC in nearly all cases decides in favor of the pier applicant.  The Circuit Courts in nearly all cases uphold the decision of the VMRC (if an appeal is taken). 

In sum, riparian property rights offer very little protection, if any at all, for a waterfront view amenity. 

Shutterstock: Ruslan Suseynov

Conclusion

The attorneys on our Waterfront Property Law Team have strong connections and significant legal experience.  As you can tell from the time a few years ago when one of our attorneys stripped off his shoes and got in the water to fend off a criminal enforcement action being filed against our client, we go the extra mile for our clients, if that is what is needed to get the job done.    

Contact Jim Lang if you would like to see him publish more information on the law of riparian rights. Of course, you can always contact Jim for his advice and assistance in connection with needs specific to your particular situation.