United States v. County Bd. of Arlington County

• Decision Date: 19 February 1979
• Docket Number: Civ. A. No. 78-872-A.
• Citation: 487 F. Supp. 137
• Parties: UNITED STATES of America, Plaintiff, v. COUNTY BOARD OF ARLINGTON COUNTY; Arland Towers Company, a Virginia Corporation; Twin Development Corporation, a Virginia Corporation; 1300 North 17th Street Associates, a Virginia Limited Partnership; Theodore B. Gould, an Individual, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

487 F. Supp. 137

UNITED STATES of America, Plaintiff, v. COUNTY BOARD OF ARLINGTON COUNTY; Arland Towers Company, a Virginia Corporation; Twin Development Corporation, a Virginia Corporation; 1300 North 17th Street Associates, a Virginia Limited Partnership; Theodore B. Gould, an Individual, Defendants.

Civ. A. No. 78-872-A.

United States District Court, E. D. Virginia, Alexandria Division.

February 19, 1979.

COPYRIGHT MATERIAL OMITTED

Thomas K. Berger, Asst. U.S. Atty., Alexandria, Va., for plaintiff.

W. Curtis Sewell, Alexandria, Va., for Rosslyn Center Associates, Rosslyn Center Development Corp., Rosslyn Center Realty, Inc., Zupnik-Rosslyn Ltd.

Jerry K. Emrich, County Atty., Arlington, Va., for Bd. of Supervisors.

Robert T. Lasky, Washington, D.C., for Twin Development Corp., 1300 North 17th St. Associates, Theodore B. Gould.

Grayson P. Hanes, Fairfax, Va., for Arland Towers Co.

MEMORANDUM OPINION AND ORDER

OREN R. LEWIS, Senior District Judge.

The United States brought this suit for declaratory and injunctive relief against Arlington County, Virginia; Arland Towers Company; Rosslyn Center Development Corporation; Twin Development Corporation; and Theodore B. Gould, to prevent the construction of four high-rise office buildings and one hotel in the Rosslyn section of the County—on the grounds of illegal zoning and federal common law nuisance.

The complaint alleges that the Secretary of the Interior is charged by law to conserve the scenery and the natural and historical objects in the parks and monuments and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations and—

As guardian of our national parks, the Secretary has a constitutionally and Congressionally-based mandate to protect the rights of the public in the parks which he deems threatened by this commercial development in Arlington County.

That through the National Capital Planning Commission the United States is charged with preserving the historical and natural features thereof by, among other things, maintaining the open space requirements along the Virginia shoreline that L'Enfant intended as a most important segment of the green backdrop of the monuments of the Capital.

That the United States owns property in both Arlington County, Virginia and the District of Columbia upon which are memorials and monuments revered by all American citizens.

That the buildings for which the site plans were unlawfully approved will soar high above the present Rosslyn skyline.

That they will present visual intrusions to the enjoyment of such areas as the Lincoln Memorial, the Washington Monument, the Theodore Roosevelt Memorial, the John F. Kennedy Center, and other park lands in the District of Columbia, and the Arlington National Cemetery and the Iwo Jima Marine Memorial in Arlington County, Virginia.

That the traffic generated as a result of the density and building heights greater than permitted under the Arlington County Ordinances will also have an adverse impact on traffic conditions on the George Washington Memorial Parkway located, in part, in Arlington County.

That by reason of the foregoing, the interests of the United States and its people have been and will be injured through the visual intrusion of the defendants' buildings on the memorials, monuments and parks of our Nation's Capital, and by the increased traffic and congestion resulting from the use of the buildings constructed under the unlawful site plans of development and in violation of the zoning ordinance of Arlington County, and the laws of the State of Virginia.

Jurisdiction pursuant to 28 U.S.C. § 1345 was not seriously questioned.

The defendants denied all of the Government's charges and asserted numerous grounds of defense, including standing—estoppel —laches—and the Virginia zoning statute of limitations.

After the United States' motion for a temporary restraining order was heard and denied—the Government dismissed the Rosslyn Center Development Corporation, as a party defendant without prejudice (the Rosslyn Center Building was about ready to be topped out).

The test for determining whether the United States or any person has standing to sue is stated in Arlington Heights v. Metro Housing Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). The Supreme Court said, at page 260-261, 97 S.Ct. at 561:

The essence of the standing question, in its constitutional dimension, is "whether the plaintiff has `alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." * * * The injury may be indirect, citation omitted but the complaint must indicate that the injury is indeed fairly traceable to the defendants' acts or omissions.

The United States has alleged such a personal stake in the outcome of this controversy —it is the property of the United States, its parks, memorials and monuments held for the use and enjoyment of the citizens of this country that will be adversely affected by defendants' actions.

Although as a sovereign the United States may not be sued * * * they may bring suits to enforce their contracts and protect their property, in the State courts, or in their own tribunals administering the same laws. As owner of property in almost every State in the Union, they have the same right to have it protected by the local laws that other persons have. See Cotton v. United States, 52 U.S. 229, 231, 11 How. 229, 13 L.Ed. 675 (1880).

The Supreme Court in In Re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (1895), made quite clear, the United States may sue, not only to protect its property * * but also to protect the general welfare and the interests of all.

Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligations which it is under to promote the interest of all and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court. Id., 584, 15 S.Ct. 906.

See, also, Cappaert v. United States, 426 U.S. 128, 96 S.Ct. 2062, 48 L.Ed.2d 523— wherein the United States filed suit to protect Devil's Hole National Monument from injury, and United States v. Ray, 423 F.2d 16 (5 Cir. 1970), wherein the United States sought to prevent the construction of coral reefs by private developers.

Lack of express congressional authority does not bar the Attorney General of the United States from bringing this suit—he has standing to institute and conduct litigation to protect the rights and properties of the United States.

The defendants' motion to dismiss for lack of standing is denied.

Although the Government should not have waited until the buildings in question were under construction before bringing this suit—laches, or neglect on the part of Government officials is no defense to a suit to enforce a public right or protect a public interest. See Utah Power and Light v. United States, 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791 (1917), and Loftus v. Mason, 240 F.2d 428 (4 Cir. 1957).

Therefore, the defendants' motion to dismiss the suit on laches and/or estoppel is denied.

Although the Attorney General concedes that the United States has no constitutional or statutory right to regulate land use in Rosslyn—he claims the United States, as a Virginia property owner, has the right to question the validity of a nearby zoning that affects its property.

The defendants contend that if the United States has such right, it is time barred by Sections 15.1-496.1 and .3 of the Virginia Code. Those with actual notice may appeal to the Board of Zoning Appeals within 30 days.

To prevent construction of a building in violation of zoning ordinance—

Where a building permit has been issued and the construction of the building for which such permit was issued is subsequently sought to be prevented, restrained, corrected or abated as a violation of the zoning ordinance, by suit filed within fifteen days after the start of construction by a person who had no actual notice of the issuance of the permit, the court may hear and determine the issues raised in the litigation even though no appeal was taken from the decision of the administrative officer to the board of zoning appeals.

As was said by Virginia's Court of Appeals:

Where . . . a special use permit has been granted under a zoning classification, a bona fide site plan has thereafter been filed and diligently pursued, and substantial expense has been incurred in good faith before a change in zoning, the permittee then has a vested right to the land use described in the use permit and he cannot be deprived of such use by subsequent legislation. See Fairfax County v. Medical Structures, Inc., 213 Va. 355, 357, 192 S.E.2d 799, 801 (1972).

Although it has been held that the United States is not subject to a state statute of limitations—we need not decide that question because this Court has examined the Gould and Arland Towers zoning and site plan filed, and finds that the actions of the Arlington County Board in approving the said site plans were neither unlawful, arbitrary nor unreasonable.

The Supreme Court of Virginia has repeatedly held that zoning site plan approvals are legislative acts, and that such actions are presumptively valid. See Byrum v. Board of Supervisors of...