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United States v. County Bd. of Arlington County

ELR Citation: 9 ELR 20174
Nos. No. 78-872-A, 487 F. Supp. 137/12 ERC 1817/(E.D. Va., 02/19/1979)

The court dismisses an action by the federal government to block construction of five high-rise buildings in Virginia across the Potomac River from Washington, D.C., ruling that plaintiff has failed to prove that the visual intrusion of the structures upon the national parks and monuments in Washington will constitute a public nuisance. The court first denies defendants' motion to dismiss for lack of standing, holding that the United States may institute and conduct litigation to protect its property interest in the monuments. Moreover, although the government should not have waited until the buildings were under construction before bringing suit, laches is no defense to a suit to enforce a public right or to protect a public interest. The court then decides that the Arlington County Board zoning decisions to permit construction of the buildings were valid, and it thus does not reach the question whether an action brought by the United States is subject to the Virginia statute of limitations. Confronting the central issue in this case, the court concludes that the United States cannot limit the height and bulk of buildings in Rosslyn on the theory of public nuisance. Height alone is insufficient to constitute a public nuisance, and courts have not condoned such interference with the use of private land without compensation as an exercise of police power. The evidence indicates to the court that the buildings would not detract from the average visitor's view of the monuments and parks of the capital. Even if a public nuisance were found, an injunction against completion of the buildings would probably not be the appropriate remedy.

Counsel for Plaintiff
Thomas K. Berger, Ass't U.S. Attorney
117 S. Washington St., Alexandria VA 22314
(703) 557-9100

Counsel for Defendants
W. Curtis Sewell
Thomas & Sewell
607 Prince St., P.O. Box 820, Alexandria VA 22313
(703) 836-8400

Jerry Emrich, County Attorney
1435 N. Veitch St., Arlington VA 22201
(703) 558-2705

Robert T. Lasky
Cadwalader, Wickersham & Taft
11 Dupont Circle, Washington DC 20036
(202) 387-8100

Grayson P. Hanes
Hazel, Beckhorn & Hanes
P.O. Box 547, Fairfax VA 22030
(703) 273-6644