Stephan,

The arbitrariness of the sequential height adjustments to one group and not another come immediately to mind. Suppose every height adjustment for condo towers, regardless of designated accommodation of the publicly policy choices as to protected view corridors, was granted equally to all the property below the proposed tram cable? Surely there is a sufficient factual nexus between them to be a relevant, even material, consideration in court.

There is a set of folks that believe that all land and all improvements and all enterprises are entirely public. It is a belief. As such it is nearly impossible to affect their beliefs through reason. However, it is a factor that one must consider when predicting the outcome of the any political policy choice and the ultimate resolution in court. It is thus unanswerable but still relevant. Stick a wet finger in the air to test the direction of the wind is the best one could do.

"IF the property owners weren't allowed to build that high anyway due to zoning restrictions that were already in place."

Professor Huffman might claim, I suppose, that M37 was a property rights vindication measure. I say, as you implicitly note above, that it actually enables the belief that a restriction, once imposed and where someone had an opportunity to object, forever removes the property owner from regaining that right. The imposition of a restriction thereby transfers to the public any value that could be had upon the subsequent removal of the previously imposed restriction. This makes for a great tautology, one that might offend even a dean of a law school. Your guess would be as good as mine I suppose on how it would be treated in a court. I would favor pointing instead toward equal privileges and immunities and to the application of the contracts clause to private contracts for the sale of property.