What Constitutional Right to Build the Ground Zero Mosque?

What Constitutional Right to Build the Ground Zero Mosque?

Michael Rulle
September 11, 2010

The countless articles and commentaries about the proposed Mosque near Ground Zero never fail to include the proviso “no one disputes their constitutional right to build it……….”. From the always odious Keith Olbermann to the always entertaining Ann Coulter it is de rigueur to make this point when discussing the proposed Mosque. Why we need to constantly reference this point is beyond me. Our original constitutional right to dispose of our property at will is derived from the Fifth Amendments Takings Clause. But as all property owners in America are aware, our rights to do what we want with our property has long been superseded by local zoning boards, the EPA, local historical committees, farm usage regulations, and countless other restrictive powers of Local, State and Federal Government. Plus, the Supreme Court ruling in Kelo versus the City of New London expanded the concept of eminent domain to include taking property from one group of private citizens to give to another group of private citizens.

While I deplore this development almost universally, it is not the case that, de facto, there is a constitutional right to build the Mosque near ground zero. It is merely the case that the Bloomberg Administration’s Zoning Commission decided to approve it. If you doubt this, I suggest you try to convert where you now live into a Church.

I am not in the real estate business. But I own a house and an apartment. At various other times I have either owned or considered buying properties. In not one of my personal situations was I not interfered with by some entity of government to prevent me from doing something I wanted to do on any property I owned or wanted to own. It is useful to point out a few items to prove just how limited our property rights truly are. My point is to show that indeed, the Mosque Builders were granted explicit permission to build, but they have no “right” to build. My examples are all trivial (except perhaps one), which is precisely my point.

I wanted to build my current driveway 10 feet to the right of where it is now on my 5 acre lot. My then “neighbor” objected as I apparently violated some “100 foot rule”. When I built my house I wanted slightly higher ceilings. I was prevented because I would have violated a height rule. I have 80 foot trees surrounding my house and have by far the smallest property in my “neighborhood”.

I bought a sofa for my apartment in NYC. It is just a sofa, but apparently on the slightly large size. It could not fit into the very small elevator of the apartment building. There are enormous windows in the building and the “super” suggested we could easily have it lifted it through the 3rd floor window of the vacant apartment across the hall from ours. We were prevented by the city because our’s is a “landmark” block (off 3rd Ave!) and we might have “risked” some damage.

I choose to highlight these things, not because it impacted me in any material way, but rather precisely because they did not and to demonstrate the level of micromanagement and power local zoning officials have and exercise.

My last story (that I will write about, there are many more) affected another property owner from whom I was willing to buy a property and which was not trivial in the slightest. The property is in western NJ and is 150 acres. The asking price was remarkably low (hint). It supposedly was zoned for 2 homes and also for building all necessary “outbuildings” to operate a horse farm/business. This property is located in an area of NJ that has many other such properties. At the time, we were considering going into business with a friend of ours, who currently operates a large stable. Without getting into all the Kafkaesque details of the situation the then owner faced, suffice it to say that 3 state bodies, each independent from the other, would have had to approve any plan. I hired a real estate lawyer, familiar with the inanities of NJ laws, to see what the situation really was. His conclusion was he doubted I could ever get pre-purchase approval for any construction—even being able to build just one house.

The woman who owned the property eventually filed bankruptcy as she bought it at a price that implied you could build on it. The bank still owns it, last I saw, and is offering it at 30% of what she paid for it.

So, while I am sure the Mosque builders can reference some set of constitutional precedents, I can assure you they were granted affirmative permission by the Bloomberg Administration to build it. So lets forget about their “right” to build anything, as real estate rights have been conditional in this country for a long time. It is obvious that building this Mosque is designed to mock the United States as well as perform a victory dance near the graves of the 9/11 victims. Those who defend it are a disgrace.