Petition for Writ of Certiorari — Garren v. City of Winston-Salem

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SEP 21 1972

MICHAEL RODAK, JR..CLERK

IN THE SUPREMF COURT OF THE UW

as, Term, 1972

no. 27479

a ee ee ee ~

Donald L. Garren and James A. Eddinoer,

Petitioners

Vv.

City of Winston-Salem, North Carolina,

Responcent.

REKKKKEEEEKKEKEKEKEKKEKKEKKKKKKKRKKKKKKKKKKKKK

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTIi CIRCUIT

KEKKKKKEKEKRKKKKKKKKKKKKKKKKKKKKKKKKKKKKRE

PETITION FOR “IRIT OF CERTIORAPI

REKKKKEKKEERKEKKKKKKKKKKKEKKKKRKKKKKKRKKKKKKKK

Norman 3B. Smith

316 Southeastern Blda.

Greensboro, N. C. 27491

Telenhone: 919--275--8603

Counsel for Petitioners

INDEX

Table of Citations

Opinions Below

Jurisdiction

Question Presented

Constitutional and Statutory

Provisions Involved

Statement of the Case

Argument 13

A board of aldermen elected

only by and from residents of the city

may not, consistent with the Fourteenth

Amendment, act as the highest zoning

legislative body for an area extending

one mile beyond the city limits from

which the residents are not eligible

to vote for or be elected to the board

of aldermen, by rezoning property with-

in the one-mile extraterritorial limit

for the purpose of permitting a aarbage

dump to be constructed there. 13

1. Denial of right of franchise

to persons in the extraterritorial

zoning area is a denial of equal pro-

tection of the laws. 14

2. Injunctive relie* to bar

the city from constructine the

garbage dump, until and unless the

rezoning is accomplished by a body

from whose selection petitioners

have not been arbitrarilv excluded,

is the appropriate remedy. 20

Conclusion 23

Appendix 24

Opinion of United States Court of

Appeals for the Fourth Circuit

of July 18, 1972

Opinion of United States Court of

Appeals for the Fourth Circuit

of March 2, 1971 33

Memorandum Ovinion and Order of the

United States District Court for

the Middle District of North

Carolina 39

North Carolina General Statutes

160-181.2 45

North Carolina Laws 1947, Ch. 677 48

North Carolina Laws 1953, Ch. 777 50

North Carolina Laws 1949, Ch. 851 52

Charter of the City of Winston-

Salem, North Carolina, Article 2 53

Code of Ordinances of the City of

Winston-Salem, North Carolina,

Chapter 29 56

Ordinance of the City of Winston-

Salem, North Carolina, Enacted

September 16, 1969 58

iti

TABLF OF CITATIONS

CASES :

Avery v. 'lidland County,

399 U.S. 474 (19€9) 15, 19

Baker v. Carr, 369 U.S. 186

(1962) ; 15

Carrinaton v. Pash, 339 U.S.

89 (1965) . 17

Cipriano v. City of Houma,

395 U.S. 791 (1969) 21

Clinaré v. “inston-Salem

217 N.C. 119, 6 S.m.2e 867

(1949) 22

Evans v. Cornman, 398 U.S. 419

(1970) 17--18

Portson v. Morris, 385 U.S. 231

(19€6) 22

Hunter v. City of Pittsburc,

297 U.S. 161 (1997) 19

Kramer v. Union Free School

District No. 15, 395 U.S.

621 (1969) 16-17

Lynch v. Household Finance

Cornoration, 405 U.S. .

31 L.ed.2d 424, 92 s.ct.

1113 (1972) €

“alone v. “Yilltams, 1128 Tenn.

399, 193 S.W. 798 (1997) 19

Phoenix v. Kolodziejs«i, 399

U.S. 204 (1970) 21

Schloss v. Jamison, 258 N.C,

271, 128 S.E.2a 590 (1962) 22

Smeltzer v. Messer, 311 Ky,

692, 225 S.W.2e@ 96 (1949)

POOR COP'Y

CONSTITUTIONAL PROVISIONS:

Constitution of the United

States, Amendment XIV 2-3, 13

STATUTES :

28 U.S.C.A. 1343 (3) 5

28 U.S.C.A. 2201 5

42 U.S.C.A. 1983 3, 3. €

North Carolina General

Statutes 160-181.2 4, 14

North Carolina Laws 1947,

Ch. 677 4, 14

North Carolina Laws 1949,

Ch. 851 ; 4

North Carolina Laws 1953,

Ch. 777 4, 14

Charter of the City of

Winston-Salem, North

Carolina, Article 2 4

Code of Ordinances of the

City of Winston-Salem,

North Carolina, Chapter 29 4, 15

I! THD ESUPRET COURT OF Tiil UNITED St2.7re

October Term, 1972

No.

_- - --2e2 © «

Donald L. Garren and James A. Nedinoer,

Petitioners,

Vv.

City of Winston-Saler, North Carolina,

Respondent.

REKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKkRK KKK

PETITION FOR A WRIT OF CEPTIOPARI

TO THE UNITED STATS COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KEKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKK

The retitioners, Donald L. Garren

and James A, Eddinger, rrav that a writ

of certiorari issue to review the juda-:

ment of the United States Court of

Arpeals for the Fourth Circuit, entered

in the above case on July 18, 1972.

OPINION BELOW

The opinion of the United States

Court of Appeals for the Fourth Circuit

which is souqht to be reviewed by this

petition is not yet reported. The onin-

ion of the United States District Court

for the Middle District of North Carolina

in this case is not reported. The prior

POOR COP'Y

decision of the United States Court of

Appeals for the Fourth Circuit in this

case is reported at 439 F.2d 140. Copies

of these opinions are appended to this

petition.

JURISDICTION

The judgment of the United States

Court of Appeals for the Fourth Circuit

was made and entered on July 18, 1972.

The jurisdiction of this Court is in-

voked under 28 U.S.C.A. 1254 (1).

QUESTION PRESENTED

1. Whether a board of aldermen

elected only by and from the residents

of a city may, consistent with the Four-

teenth Amendment, act as the highest

zoning legislative body for an area

extending one mile beyond the city limits

from which the residents are not eligible

to vote for or be elected -the board of

aldermen, by rezoning property within the

one-mile extraterritorial limits for the

purpose of permitting a garbage dump to

be constructed there.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States:

AMENDMENT XIV.

Section 1. All persons born or

naturalized in the United States,

and subject to the jurisdiction

thereof, are citizens of the

United States and of the State

wherein they reside. No State

shall make or enforce any law

which shall abridge the vrivi-

leges or immunities of citizens

of the United States; nor shall

any State deprive any ~erson-of-”

life, liberty, or property,

without due process of law; nor

Geny to any person within its

jurisdiction the equal nrotec-

tion of the laws. ...

Section 5. The Congress shall

have power to enforce, by

appropriate leqislation, the

provisions of this Article.

42 WiSeCeRs 1983.

Every person who, under color

of any statute, ordinance,

regulation, custom, or usage

of any State or Territory,

subjects or causes to be sub-

jected, any citizen of the

United States or other person

within the jurisdiction thereof

to the deprivation of any riahts,

privileges, or immunities

secured by the Constitution and

laws, shall be liable to the

party injured in an action at

law, suit in equity or other

proper proceeding for redress.

General Statutes of North Carolina:

N.C.G.S. 160-181.2

[Set out in Appendix]

North Carolina Public Local Acts:

North Carolina Laws 1947, Ch. 677.

{Set out in Appendix]

North Carolina Laws 1949, Ch. 851.

[Set out in Appendix)

North Carolina Laws 1953, Ch. 777.

[Set out in Appendix]

Charter of the City of Winston-Salem,

North Carolina:

[Set out in Appendix]

Code of Ordinances of the City of Winston-

Salem, North Carolina:

{Set out in Appendix]

STATEMENT OF THE CASE

This proceeding arises in the United

States District Court for the Middle Dis-

trict of North Carolina. Petitioners

commenced a civil class action, seeking

declaratory and injunctive relief against

the City of Winston-Salem. The gist of

the plaintiffs" cormlaint is that they

ane the members of their class are resi-

eents of a one-mile extraterritcrial

zoninca racius extencina hbevone the city

lirits of the City of “inston-Saler, that

the Winston-Salem Board of Aldermen has

the exclusive and final zonine legisla-

tive authority to zone and rezone the

area in which they live, but rlainti**s

and the members o* their class are not

permitted to vote for or be elected to

the Board of Aleermen. Jurisciction of

the District Court vas invokee nursuant

to 22 U.S.C.A. 1343 (3), 28 U.S.C.A.

2201, ane 42 U.S.C.A. 1993.

The United States District Court ‘for

the “Middle District o* North Carolina,

Vinston-Salem Division, the Honorable

Eucene A. Gordon rresidince, hele a sincle

hearing at which evidence was taken, ané

considered tocether olainti*fs' rravers

for ~reliminary anc vermanent injunctive

relief ane Ceclaratory judoment. The

Court in its order entered February 29,

1970, dismissed the action vith prejucice,

uron the alternative grounds that there

vas no juriteciction unéeer the civil

riehts lavs because the City of “tinston-

Salem was not a “person” within the

neanine of that term as emrloved in 42

U.S.C.A. 1933, and that rlaintif*s were

not entitlee to relief on the rerits be -

cause the recent rea~rortionment cases

cid not affect the validity of a lone

line of annexation cases qivina the

states throuch their municiral subcivi-

sions virtually unlirited rights to con-

trol municipal boundaries, -

POOR COPY

EE RT a Rr hee errr emery

This action was arnvealed to the

United States Court of Apreals for the

Pourth Circuit, which rendered its oninion

on March 2, 1971, affirming the judccrent

of the District Court. The Court of

Appeals held that the City of ‘linston-

Salem is a “person” within the meaninc

of that term as used in 42 U.S.C.A. 1993

in an action secking equitable relie* for

alleged deprivation of a civil richt: but

that plaintiffs presented their su*‘fraae

right only in the context of the alleced

impairment of a property right, and that

42 U.S.C.A. 1983 does not extend to >ro-

tect property rights, but is concerned

only with personal liberties.

The decision of the United States

Court of Appeals for the Pourth Circuit

was reversed by this court™@mrrApril 17,

1972. 405 U.S. » 31 L.ed.24 787, 22

S.Ct. (1972), for further consider-

ation In licht of Lynch v. Household

Pinance Corvoration, 495 U.F. ~~ | Ji

L.ed.2d > -Ct. 1113 (1972),

where it was decided that rroverty rivts,

as well as distinctly rersonal liberties,

are within the civil rights vrotected hy

42 U.S.C.A. 1983.

On remand the United States Court

of Appeals for the Fourth Circuit acain

affirmed the District Court judgment by

an opinion entered on July 18, 1972. The

court, consistent with the District

Court's alternative holdcinc, was of the

opinion that this case is analocous to

the annexation cases insteae of the votine

richts cases. The Court o* Arreals stated

that plaintiffs have not »ceen denied anv

constitutionally protectec richts of

franchise because they are not bona fice

residents of the City of Winston-Salem

and have no standine to assert these

rights. Plaintiffs »elieve that thev are

entitled to relief in this action under the

authority of a lone line of voting richt

cases, and for this reason they again

vetition this court for writ of certiorari.

Plaintiffs’ cormlaint in particular

is of an act of the Poard of Aldermen of

the City of Winston-Salem in its zonina

legislative capacity, rezonine a tract

of land in close proximity to their

residences, from a residential classifi-

cation to an industrial classification,

for the sole purvose of constructinc

there a garbage durp, or so-called sani-

tary landfill. (Apr. 10-11) There are

approximately two thousand rersons who

live within a distance of one and one-

half miles of the proposed carbace dum,

and it is estimated that sixt* rercent

of these persons live within the one-

mile extraterritorial zoninec radius sur-

we the City of “inston-Salem. (Tr.

28-29 °

At its August 21, 1969, meetina, the

City-County Planning Board for the Citv

of Winston-Salem and County of Forsyth,

voted to recormend to the Board of Alder-

men of the City of Winston-Salem that

the vetition by the City of Winston-Salerm

be granted for rezoning from classifica-

tion R-6 and R-5 to classification I-3,

‘OOR COPY

the property located alona Salem Creek

three thousand feet north of the West

Clemmonsville road and twenty-four hun-

dred feet west of Ebert Road, consisting

of eighty-five acres, and being a part

of Lot 1, Block 3928, as shown on the

Forsyth County tax maps. (App. 6, 15)

On September 16, 1969, the Board of

Aldermen of the City of Winston-Salem,

adopted the recommendation of the Plan-

ning Board and enacted an ordinance

amending the City of Winston-Salem Zonina

Ordinance and the Official Zoning Map of

the City of Winston-Salem, North Carolina.

A copy of the amendatory ordinance is

set out in the Appendix.

Zoning classifications R-5 and R-6

provide districts with safeguards for

areas which are developed or in the pro-

cess of development predominantly with

Single family dwellings. The zoning

ordinance provides that classification

I-3 is to establish a district for

industries which generally require

specially selected locations, and amonq

the permitted uses under this classifi-

cation is a sanitary landfill. Sanitary

landfills are not permitted uses under

either classification R-5 or classifica-

tion R-6. (App. 7-8, 15) Defendant, in

petitioning for rezoning of the area in

question, stated that the intended use

of sixty acres of the tract would be to

operate a sanitary landfill. (App. 8, 15)

This action was commenced on Novem-

ber 4, 1969. Preliminary site clearing

operations on the property were becqun

about October 24, 1969. (App. 8, 15)

When this case was heard in district

POOR C

court on December 18, 1969, major con-

struction of the sanitary landfill had

not been commenced. (Tr. 33-39)

Soon after defendant City of “inston-

Salem announced plans in early 1969 to

acquire, rezone, and construct a Sanitary

landfill on a tract of land located in

the area in question, plaintiffs and

many Of the members of their class and

others, formed a voluntary organization

for the »curpose of oprosing these

measures. Funds were raised, an attorney

was hiree, nublicity releases were made,

various hearinas were attended, and re-

quests for help were made to the Forsvth

County lecislative deleaation to the

North Carolina General Assembly, and to

the Denartment of Housing and Urban

Development, as part of the cammaicn of

_ this organization. (Tr. 29-34)

The garbage dump in question is one

of tne four landfills which the City of

Winston-Salem provoses to rlace into

operation, so that there wil! Se one

landfill in each of the four quadrants

of the city. The site which is the sub-

ject of this action is located in the

southwest quadrant of the citv. The

landfill pronosed for the southeast cua-

drant of the city, known as the Overdale

Road site, is also located in the one-

mile extraterritorial zonina area outside

the corporate limits of the citv. The

lancfill for the northeast quadrant of

the city is a site vresentlv used for

Gumping purposes near Smith-Reynolds Air-

port, which is now within the municiral

R COPY

limits, although at the time this site

was first put to use as a landfill, it

was outside the corporate limits. To

date no site has been selected for a

landfill in the northwest quadrant of the

city. (Tr. 83-84, 89-90, 100-191, 114)

Some of the members of plaintiffs’

Class live within four hundred feet of

the property on which the aqarbage dump

is located. There are three residential

subdivisions of substantial size located

within approximately two thousand feet

of this property. (Tr. 28-29) Very

little, if any, residential construction

has been commenced within one and one-

half miles of the garbage dumm site,

subsequent to the announcement by the

City of Winston-Salem of its intention

to acquire the property for this purpose,

whereas during the several years vrior

to the announcement a number of new

houses had been constructed in that area.

Approximately one hundred and twenty

five thousand tons of solid waste are

being dumped in Winston-Salem's existing

landfills each year. The City collects

garbage on thirty routes, serving one

hundred and forty thousand residents of

the city. In addition a number of per-

sons who reside outside the city have

their garbage collected by the municinal-

ity. Not only municipal garbage trucks

deposit their loads at the landfills, but

these locations also serve as dumpina

sites for trucks operated by rural pri-

vate garbage collection services and

trucks ane other vehicles omed by »usi-

nesses and individuals hauline recular

or occasional loads of refuse to the

dum. (Tr. 34, 99, 196-197)

Plaintiffs offerec the evidence of

defendant's practices anc conditions vrev-

alent at the princiral existing sarbace

dumn, the Link Road site, for the »urpose

of showing the prospective environmental

impact of the new carbace dumo. Hichlv

offensive odors frecuently emanate from

the Link Road dumm, vermeate the sur-

roundina community, and even infiltrate

the interiors of the dwellinas in the

area. A substantial ropulation of rats

have been attracted to the dumm. Flies

in great swarms are spawned at the dumm

and are present in surrounding neichbor-

hoods in such numbers that it is imnos-

sible to have cook-outs, vicnics, and

other outside activities in the yards in

this area during the summertime. Brush

and other inflammable wastes are burned

periodically at the dumm, and other fires

have been ignited by spontaneous com-

bustion in the rubbish niles. Smoke,

soot, and ash from these fires have

blown in the surroundina environs. Some

of the fires have escaped from the land-

fill area into adjoining qrass and brush.

On a number of occasions municipal fire-

fighting equinment has been summoned to

extinguish blazes at the dump. A steady

stream of trucks and other vehicles

brinaging trash to the dumv passes throudch

the access roads in the area, beainnina

at about 3:00 A.M., and endina at about

midnight, every dav. Many of the vehicles

used to transport the refuse are not

covered, and large quantities of pavers

and other refuse blow into the yards of

the surrounding neighborhoods. (Tr.

40-43, 66-71, 73-78) Methane qas, a

highly explosive substance, is a standaré

product of decaying refuse. There have

been several instances of probable

methane gas fires at the Link Road site.

(Tr. 119-123) Garbage at the Link Road

site is not covered and commacted with

fill dirt at regular intervals, and many

thousands of cubic feet of refuse remain

exposed at this site continuously. (Tr.

49-43, 52-53, 66-67)

Defendant offered evidence that the

new garsace dump woulc he orerated in a

manner suverior to that in which the Link

Road site has been maintained. (Tr. 87-

88, 91-92, 98) Nevertheless, there are

certain inherently objectionable cuali-

ties even to a well-maintained sanitarv

landfill. It is probable that there will

ne some objectionable odors, some rats,

more flies than one would find in the

usual residential neiahborhood, some

wind-blown trash, and other undesirable

effects. Methane cas, a hicghly exnlosive

substance, is known to he produced in any

landfill, and the exact extent of the

cangers of this qas, and the difficulty

and efficacy of controlline the qas,

were not known by defendant's officers

at the time of the hearina, while reports

from consultants on this subject were

awaited. (Tr. 133-134) There are no

plans to forbid the burning of brush,

leaves, and other materials at the new

landfill. (Tr. 126) The princinval

access road to the new landfill is narrow

and winding and has two small bridges; it

is apparent that travelers on this hich-

way Will be endangered and inconvenienced

by the heavy traffic of larae vehicles

aoing to and from the dumo. (Tr. 35-38)

The evidence showed that it was

reasonable to anticivate that many of the

several hundred dwellina houses located

in proximity to the new qarbace dump,

including those occupied by plaintiffs

and the members of their class, would

depreciate substantially in value as a

result of the construction of this pro-

ject. (Tr. 58-64)

ARGUMENT

The decision below should be re-

viewed because the United States Court

of Appeals for the Fourth Circuit has

decided a federal question in a way in

conflict with applicable decisions of

this Court, by upholding the district

court judgment that denial of the fran-

chise to residents of:‘extraterritorial

areas on bodies that make legislative

decisions binding upon them, is not in

violation of the one man---one vote

doctrine.

A board of aldermen elected only

by and from residents of the city mav not,

consistent with the Fourteenth Amendment,

act as the highest zoning lecislative

body for an area extending one mile be-

yond the city limits from which the resi-

elected 1 to the ‘board of aldermen

zoning pr within the pee ati

territoria “Ti t for the »urvese of per-

at a garbage dump to be ‘const: ucted

ere. mae ries

1. Denial of right of franchise to

persons in the extraterritorial zoning ~

area is a denial of equal vrotection of

the laws. The United States Court of

Appeals for the Fourth Circuit determined

that plaintiffs were not entitled to re-

lief because the reapportionment cases

did not affect the validity of the long

line of authority of annexation cases

giving the state virtually unlimited

right to control the boundaries of its

municipal subdivisions. The Court was

of the ovinion that vlaintiffs have no

standing to assert rights of franchise

or equal representation in municipal

affairs, because thev are not bona fide

residents of the City of Winston-Salen. .

The Board of Aldermen of the City of

Winston-Salem has the final authority to

act upon amendments to the Zoning Ordi-

nance of the City. The members of the

Board of Aldermen are elected bv the

voters who reside within the city limits.

North Carolina General Statutes, N.C.G.S.

160-181.2 and a public local act, North

Carolina Laws 1947, Chapter 677, as

amended by Laws 1953, Chanter 777, confer

yoon tae WOarcd OF Aldermen of the City of.

jinston-Sasem tae juriscictioa to adont

ordinances zoning and rezoning an area

contiguous to the city, in the case of

the general statutory provision, an area

one mile in width, and in the case of the

puviic local law vrovision, an area three

wiles in width. By its Zoning Ordinance

of Septemver 17, 1968, Section 29-1, the

City of Winston-Salem nas assumed zoning

surisuiction over the area within one

nile beyond the city limits in all direc-

tions.

This statutory arrangement cenies

the equal protection of the laws to

plaintifis and the mexbers of their

class. A citizen's right to vote free

of arbitrary impairment by state action

is recognized as a right secured by the

constitution. Saker v. Carr, 369 U.S.

186 (1962). Plaintiffs and the members

of their class have been placed in a

position of arbitrary inequality vis-a-

vis voters in an irrationally favored

district for purposes of zoning. siexrely

because Of the accident of geographic

location, plaintiffs are not granted

equal rignts to vote on an issue of

direct concern, the selection of a legis-

lative body with the power to acopt and

alter the zoning ordinances governing

their place of residence. The principles

of tae reapportionaent cases apply to

units of local government engagec in

activities of a legislative nature.

Avery v. Midland County, 390 U.S. 474.

(1968).

POOR COP'y

An otherwise qualifiecé voter who is

totally excluced from the electoral

process, is as much entitled to relief

uncer tne one man--one vote doctrine, as

tne citizen wio is underrepresented or

unequally represented in the electoral

process. Kramer v. Union Free School

District No. 15, 395 U.S. 621 (1969).

siere tae court invalidated a state law

limiting the franchise in school board

elections to property-owners and parents

of schoolchildren residing in the dis- ©

trict.

When statutes are under review

“which deny some residents the right to

vote, the general presumption of consti-

tutionality afforded state statutes and

the traditional approval given state

classifications if the Court can conceive

of a ‘rational basis' for the distinc-

tions made are not applicable. ...

Legislation waich delegates decision-

maxing to bodies electec by only a por-

tion of those eligible to vote for the

legislature can cause unfair representa-

tion. Such legislation can exclude a

minority of the voters from any voice in

tne decisions just as effectively as if

the decisions were made by legislators

the minority had no voice in selecting."

Kramer v. Union Free School District No.

3, supra, 395 U.S. 627-628. The urt

Gid not rule out the possibility tnat a,

state may in some circunstances limit the

exercise of the franchise only to those

primarily interested in or primarily

affected by the activities of the elec-

tive body, but cautioned, "The

classifications must be tailored so the

exclusion of appellant and the members of

his class is necessary to achieve the

articulated state goal." Kramer v. Union

Free School District No. 15, supra, 395

U.S. 632. No rational state interest has

been, or can be, suqgested by defendant

City of Winston-Salem in this case, for

excluding the residents of the extrater-

ritorial zoning area from the aldermanic

franchise, when the Board of Aldermen is

vested with the authority to make the

zoning legislative decisions that affect

these residents’ welfare and property.

The Court of Anveals claimed that

the impact of these voting rights cases

on the present action could he avoided

on the theory that plaintiffs were not

bona fide residents of the City of

Winston-Salem and hence were without

standing to assert their voting rights.

This Court will not sustain efforts by

states and their subdivisions to brand

a sector of the population as non-resident,

and on that basis Ceny them the franchise,

when these citizens physically reside in

the locale affected by the legislative

decisions of the body whose selection is

in question. Carrington v. Rash, 380 U.S.

89 (1965). In a case factually analogous

to the present action, Evans v. Cornman,

398 U.S. 419 (1970), the Court held that

persons who resided in federally-owned

enclaves located within the state of

Maryland could not be denied the rights

to vote in state elections. Jurisdiction

over these enclaves had been ceded to the

United States by the state. The residents

—

of these areas were affected in numerous

ways by state electoral decisions, such

as the passage of state criminal laws,

automobile reqistration and driver li-

censing, collection of income, gasoline,

and sales taxes. On the other hand resi-

dents of the federal enclaves did not pay

state property taxes and were subject to

prosecution only in federal courts. The

Court, holding that these citizens could

not be consitutionally denied the right

to vote in state elections, said, “these

differences, along with whatever others

may exist, do not come close to establish-

ing that degree of disinterest in electora)

decisions that might justify a total ex-

clusion from the franchise." 398 U.S. at

426. In the present case, plaintiffs and

other persons who reside in the extra-

territorial zoning area are said not to

be residents of the city. While they

literally do not reside in the city, they

are residents of an area over which the

city has been given zoning legislative

power, which is exercised by the elective

board of aldermen. With respect to zoning

decisions, plaintiffs and the others who

live in the extraterritorial area are

vitally interested in and affected by this

legislative process. It cannot be said

that they possess “that degree of disin-

terest in electoral decisions that might

justify total exclusion from the franchise."

Two state courts have considered

directly the question of whether a city

may constitutionally exercise zoning

jurisdiction over areas occupied by per-

sons to whom it does not extend the fran-

chise. Malone v. Williams, 118 Tenn. 399,

103 S.W. 798, 806 T1507); held that an

act granting the City of Memphis author-

ity to exercise zoning authority for two

miles beyond the corvorate limits was

invalid, the court saying, "The control

in the present instance is given, not to

anyone chosen or elected by the reorle

over whom they are to exercise dominion,

but to the officers of a foreign body,

and not for the veople to be affected by

the powers given.“ Smeltzer v. Messer,

311 Ky. 692, 225 S.W.Zd 96, 37-98 (1949),

holds purported extraterritorial zoning

of a municivality invalid, for one

reason because, ". . . the city's action,

if sustained, seriously imoairs the right

of a person owning property beyond its

limits who has no voice in its leaisla-

tive policies, and who receives no legal-

ly recognizable benefit to such property

from the city government."

The lower courts relied to some ex-

tent to statements contained in Hunter v.

at of Pittsburgh, 207 U.S. 161 (1907),

—

e affect that the state has unlimit-

ed discretion to modify and withdraw any

of the powers of a municipal corporation,

including territorial chances, without the

consent of the citizens. This broad and

sweeping dicta cannot be applied in the

circumstances of the present case, in

light of pore v. Midland County, 390 U.S.

474 (1968). reapportionment cases, and

not the annexation cases, provide the cor-

rect analogy for consideration of the vre-

sent case. Here no distinct covernmental

unit or district has been created or

proposed, as in the annexation cases.

Instead, a croup of citizens simoly

have been denied the richt to ~artici-

pate in governmental decisions affectinc

their personal interests. The >laintiffs

have no present right anc no future richt

to vote for the members of the lecqislative

body which determines zonina ratters af-

fecting their property, while in the an-

nexation cases cited bv the district court

the plaintiffs were civen the riaht in

advance to vote for or against annexation,

and in the event they were annexed, they

would have the right to participate fully

and ecually as electors of the municivality.

Petitioners do not contend that the

City of Winston-Salem is without consti-

tutional authority to exercise zoninc

jurisdiction beyond its corcorate limits.

Petitioners do not contend that the

power to enact amendments to zoning

ordinances can be vested by state law

only in the board of aldermen of the cit”.

But the petitioners €o maintain, as is

amply surported by the authorities cited

above, that if the wvower to enact and

amend zoning ordinances is ccleaatec to

the board of aldermen, an elective hocy,

this jurisdiction cannot extend to areas

populated by persons vho are not accordec

the riqht of participating in alcermanic

elections.

2. Injunctive relie* to var the city

from constructing the Farbace durr, unti

and unless the rezonine is accommlished

POOR COPY

fully enacted rezoning ordinance, because

their action in district court is an

appropriate form of procedure to obtain

this objective, and because the attack

on the validity of the enactment was

timely. Plaintiffs and the members

of their class were constant and dedi-

cated in their opposition to the rezonina

ordinance, and they exhausted every

reasonable political and administrative

remedy before having recourse to the

federal court. The ordinance was passed

on September 16, 1969. This action was

commenced on November 4, 1969.

The relevant authority on the ap-

propriateness of an injunctive remedy of

the nature sought here, is contained in

Cipriano v. Houma, 395 U.S. 701 (1968),

and Phoenix v. Kolodziejski, 399 U.S.

204 (1970).” In both of these cases state

laws were invalidated, where only

property taxpayers or propverty-owners had

the right to vote in elections to approve

municipal revenue bonds. Each case becan

as an action in federal district court to

enjoin the issuance of the bonds approved

at a special election’ from which plain-

tiffs had been excluded. The Court held

that it was aporopriate to crant the

injunction, thus vitiatine the election

and forbidding sale of the bonds, as well

as to declare the statute unconstitutional,

so long as under state law the challence

to the election result was timely.

In the present case, anplyina North

Carolina law, the riaght to test the con-

stitutionality of a zonine ordinance by

an action for injunction, following the

enactment of the offending ordinance ard

before the physical chanaes are effected

which the ordinance authorizes or re-

guires, is established beyond question.

Schloss v. Jamison, 258 N.C. 271, 128

S.E.2c 590 (1962): Clinard v.- vinston-

Salem, 217 N.C. 119, 6 S.E.2d 867 (1540).

The Court of Appeals suqcaested that

plaintiffs' victory would be an empty

one, because if rezoning the rroperty in

question was held to be unconstitutional,

the original zonina law would nave to be

deemec unconstitutional for the same rea-

son, and the property then would hecome

unrestricted so tha* the municipality woulé

be free to construct the carbaace dumn.

This suggestion overlooks a traditional

feature of the law of zonina, toaether

with a well established principle in re-

apportionment cases. It is traditional

in the laws of zoning that prre-existina

land uses are accepted and validated,

whether or not they were the result of

prior zoning laws. And this Court has

establishec that rrior laws enacted by a

mal-apportioned legislature are not invalid.

Fortson v. Morris, 385 U.S. 231 (1966).

CONCLUSION

For the reasons set forth above, it

is respectfully submitted that this

petition for a writ of certiorari should

be granted.

Counsel for Petitioners

Norman B. Smith

Smith, Patterson, Follin &

Curtis

816 Southeastern Bldg.

Greensboro, N.C. 27401

Televhone: 919-275-8603

APPENDIX TO PETITION

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14,562

Donald L. Garren and James A. Fddincer,

Apvvellants

-versus-

City of “‘"inston-Salem, North Carolina,

Aornellee.

ae ea a eee

On Arveal from the United States

District Court for the ‘‘idcle

District of North Carolina

(Arguecé November 9%, 1379

Decidee Julv 13, 1972)

Sefore 'IAYNS"OPTI, Chief Jucce, “UPRRAH*,

Senior Circuit Judae, and CRAVIN, Cir-

cuit Judge.

* Of the Tenth Circuit sitting by

designation.

POOR CC

Renn Drum, Drum, Liner & Pedden, Winston--

Salem, North Carolina (Norman B. Smith,

Smith & Patterson, Greensboro, North

Carolina, on brief), for Anrellants.

William F. Wombl2 and John L. '). Garrou,

Winston-Salen, North Carolina (Of Coun-

sel: Womble, Carlyle, Sandridoe & Rice,

Winston-Salem, North Carolina, on brief),

for Appellee.

eee ee

MURRAH, Senior Circuit Judae

We previously affirmed the District

Court's dismissal of this action on the

grounc that the apnellants' claim was con-

cerned only with the infringement of prop-

erty as opposed to pnersonal rights and did

not, therefore, state a claim coqnizable

under 42 U.S.C. § 1983, for which juris-

diction is conferred under 28 U.S.C. § 1343

(3). See 439 F.2d 140. Our decision was

vacated and the case remanded by the

Supreme Court for consideration in co

of L Se v. Household Cornp.,

(Mare , 1972). That case held that ei

there 5... “no jurisdictional distinction

between personal liberties and propertv

rights under § 1343(3).

Having previously held, contrary to

the trial court's ruling, that Winston-

Salem is a person within the meaning of

§ 1983, amenable to injunctive and declara-

tory relief for asserted devrivations of

a civil right (see 439 F.2d 140, 141), we

COPY

are brought squarely to the merits of appel-

lants' claim of denial of equal protection

of the laws. On remand the parties have

recuested no further briefing and are ap-

parently content with our previous state-

ment of the essential facts and the con-

stitutional issue presented. We accordinaly

proceed to a decision of the matter as ;

submitted.

For convenience only, we shall restate

tthe pertinent facts and apnellants’ con-

stitutional claim. The Board of Alderman

of Winston-Salem, acting on recommendation

of the City-County Planning Board, rezoned

eighty-five acres of land owned by the

city and located outside its territorial

limits from residential to industrial use.

This was for the purpose of constructing

a sanitary landfill on the property, a

permitted use only under the rezoned class-

ification. Both the general statutes (N.C.

Gen. Stat. § 160-181.2)1 and the local

public acts (Laws 1947, ch. 677, § 23, et

sea: as amended Laws 1953, ch. 777, § 1)

of the General Assembly of North Carolina

authorize the exercise of extraterritorial

zoning powers. The powers assertec by

Winston-Salem in this case were exercised

1. Repealed by Laws 1971, ch. 698, § 2,

effective January 1, 1972.

by the Board of Aldermen, apparently

pursuagt to the local public acts,

supra.

Garren and Eddinaer bring this suit

on behalf of themselves and all other

versons residing in the extraterritorial

zoning area and in the vicinity of the

rezoned city-owned property who will al-

legedly suffer irreparable harm by con-

struction of the landfill. They do not

question the constitutional power of the

state to authorize its municipalities to

—— |

2, We agree with appellants' contention

that the rezoning ordinance here in

question was enacted pursuant to the

authority specifically conferred on the

City of Winston-Salem by the local public

acts and that the constitutionality of

N.C. Gen. Stat. § 160-181.2 is not di-

rectly in question. In these circumstances,

the convening of a three-judge court

pursuant to 28 U.S.C. § 2281 was not re-

quired ané, indeed, would have been im-

ae (Jan. 24, 1972):

Moody v. Flowers, 387 U.S. 97 (1967) ;

Rorick v. Comm'rs., 307 U.S. 208 (1939).

For a brief history of the local public

acts in question, see State v. Owen, 242

N.C. 525, 38 S.E.2d 832 (1955). 7

zone or rezone extraterritorial prorerty.3

Nor do they contend that the powers as-

serted here were not exercised in conforn..

ity with the enabling statutes. Rather,

as explicated in arqument and brief.

we read the complaint to seek: (1) a

Geclaration of unconstitutionality of

the local public acts in question to

the extent and only to the extent that

they grant the City of Winston-Salem

power to zone extraterritorial pronerty

in a manner which will detrimentally

affect the property of non-residents of

the municipality who have no representative

voice in the election of the municipal

body which exercises the zonina powers:

and, (2) injunctive relief against en-

forcement of the rezoning ordinance in

question as an unconstitutional exercise

of those powers.

eee ee — —- =

3. Statutes authorizing municipalities

to exercise extraterritorial zoning

powers have been upheld in North Carolina.

as well as other jurisdictions. See,

e.g., City of Raleigh v. Morand, 247 N.C.

363,100 S.E-2d B70 (1987), appeal dis-

missed, 357 U.S. 343 (1958)- Town of ~~

Garner v. Weston, 263 N.C. 487, 139 S.E.

2d 642 (1965): Walworth Co. v. City of

Elkhorn, 27 Wis.2d 30, 133 N.i.2d 257

(1965); Schlientz v. City of North Platte,

172 Neb. 477, [10 N.w.2d 53 (1961)5 °°

POOF

The trial court anparently accented

the municipality's contention that this

case is in the nature of cases dealing

with municipal annexation powers, the

exercise of which are " .. .unrestrained

yy any provision of the Constitution of

the United States." Hunter v. Pittspurgh,

207 U.S. 161, 179 (1907). See also

Detroit Edison C. v. East China Townshin

School Dist. No. 3, 247 F.Supp. 296

——- —_—

denied, 382 U.S. 837° International

Harvester Company v. Kansas City, 303

F.2d 35 (10th Cir. 1962), cert. denied,

371 U.S. 948. But, correctly read, the

"seeminaly unconfined dicta of Hunter

and kindred cases is not that the state

has plenary power to manipulate in every

conceivable way, for every conceivable

purnose, the affairs of its municipal

cornorations, but rather that the state's

authority is unrestrained hy the nartic-

ular prohibitions of the Constitution con-

sidered in those cases. .. . Legislative

control of municivalities, no less than

other state pnower, lies within the scope

of relevant limitations imnosed by the

United States Constitution." Gomillion q

v. Lightfoot, 364 U.S. 339, 344-345 (1960) .§

This 1s especially true in the sensitive

area of individual votina rights, wherein

it is established beyond doubt that state

powers may not be exercised to work a

discrimination between citizens who stand

on an equal fcoting beforé the law. See

OOR COP'y

Reynolds v. Sims, 377 U.S. 533 (1964):

Lucas _v. Colorado Gen. Assembly, 377 U.s.

; Dunn v. Blumstein, —_U.S.

cases, MEGECh Z, T9772).

It is in this context that anvellants

earnestly contend that our case is demon--

stratively unlike the annexation cases,

and constitutionally analogous to the

voting rights cases -- particularly the

more recent ones extending equal protection

of the laws to"... the exercise of

state power however manifested, whether

exercised directly or through subdivisions

of the State." Avery v. Midland County,

390 U.S. 474, 475 8). See also

Kramer v. Union School District, 395 U.S.

; Cipriano v. City of Houma, 395

U.S. 701 (985) an ry

This is not, however, an orthodox

voting rights case. Nor do we think the

principles of those cases can be ration-

alized to support appellants' claim that

they have been denied equal protection

of the laws as a result of being denied

equal voting rights. Appellants have

not been denied any constitutionally

protected rights of franchise or equal

representation in municipal affairs. This

is’ so simply because not being bona fide

residents of Winston-Salem they have no

standing to assert such rights. See

Carrington v. Rash, 380 U.S. 89, 93-94

- Appellants' property is subject

to no different zoning restriction or

other burdens than the property of munic-

ipal residents. And the fact that

POOR

anpellants do not enjov the same recourse

to the ballot box is not the result of an

invidious or suspect classification, or

any other act of overt discrimination.

Cf. Gomillion v. Liahtfoot, sunra.

Inasmuch as apnellants have not shown

themselves to be deprived of any benefit

otherwise due them on the basis of an

unreasonable or unjustified classification,

we have no occasion to consider or annlv

the commellinq state interest test as in

Dunn v. Blumstein, supra.

In these circumstances, the case

comes down to a situation where the citv

is zoning and rezoning extraterritorial

property which it owns in accordance with

its constitutionally conferred statutory

powers. "One has no constitutional riaht

to a ‘remedy' against the lawful conduct

of another." Senn v. Tile Lavers Union,

301 U.S. 468, 483 (1937). The remedy for ~—

any wrongs which appellants may have 4

suffered or may suffer at the hands of :

the municipality in the exercise of its :

extraterritorial zonina powers does not :

lie under § 1983 of the Civil Rights Act. /§—

Even if avvellants' constitutional

arguments were to prevail it would be an

empty victorv. For if the Citv of “linston-

Salem is constitutionally vrohibited from

rezoning the proverty in cuestion so as

to allow construction of a sanitary land-

fill, the. oriqinal zoning of the land would

have been constitutionally vrohibited for

the same reason. The pronrerty, thus,

would be unrestricted, and the municiralitv

SNE Per OE

TNS IRE OF GAY

OR COP’Y

would be free to exercise its nolice power

in furtherance of any leqitimate qovern-

mental function.

The trial court's dismissal of this

action is affirmed.

ee ee ee Se ~~ oe

UNIT:D STATES COURT OF APPFALS

POR THE FOURTH CiRCUIT

No. 14,562

-“- » “++

Donald L. Garren and Janes A. Fddinacr,

Arrellants

~versus-

City of "“linston-Salem, “iorth Carolina.

Novellee. :

———————

On An»real from the United States

District Court for the “iccle

District of North Carolina

——— ee

(Arqued Nover»er %, 1979

Decided arch 2, 1971)

jofore NAYNSYVORTI, Chic*® Jucac, “URRALI*.

Senior Circuit Judoe, anc CRAVEN, Cir

cuit Judace.

* Of the Tenth Circuit sittina ‘w

cesiqnation.

“a - =.) =

Renn Drum, Drum, Liner & Redden, Winston-

Salem, North Carolina (Norman 8. Smith,

Smith & Patterson, Greensboro, North

Carolina, on brief) for Appellants.

William ?. Womble and John L. W. Garrou,

Winston-Salem, North Carolina (Of Coun-

sel: Womble, Carlyle, Sandridge & Rice,

Winston-Salem, North Carolina, on brief)

for Appellee.

MURRAH, Senior Circuit Judge

The decision of Winston-Salem to lo-

cate a sanitary landfill (also referred

to as a garbage dump) in proximity to

plaintiffs’ property resulted in this

suit for declaratory and injunctive re-

lief which the trial court deniec. The

undisputed facts are that the Board of

Aldermen of Winston-Salem, acting on the

recommendation of the City-County Plan-

ning Board, rezoned eigiuty-five acres of

city land located outside its territorial

limits from residential to incustrial use,

A sanitary landfill is a permitted use

only under the rezoned classification.

Both general and local public acts

of the General Assembly of North Carolina

authorize the exercise of the extra-

territorial zoning powers agsertec by

Winston-Salem in this case. These

I. Worth Carolina Seneral Statutes §160-

181.2; Laws 1947, Ch. 667-§23; Laws 1953,

Ch. 777-§1.

POOR

S are exercised by the Board of

Aldermen who are elected only by the

resicents of Winston-Salex.

Garren and itdaddinger bring this suit

in behalf of themselves and all other per

sons resicing within the one mile extra-

territorial zoning area and particularly

all persons who will suffer alleged ir-

reparable harm oy construction of the

lancfill. As we reac it, the Couplaint

alleges in substance and effect that

Section 160-181.2, North Carolina General

Statutes, ceprives plaintiffs of the

equal protection of tue laws by sudject-

ing them to the zoning powers of the

3oaru of Aldermen while Cenying them the

right to vote in alcermanic elections

taus working an irreparable injury to

taeir property rights for the redress of

which no adequate remedy at law is

available.

As explicatec in argument and brief,

we read the prayer to seek (1) a ceclara-

tion of the unconstitutionality of the

special act to the extent and only to the

extent that it grants the City of dinston-

Salem extraterritorial zoning powers

without accoraing nonresident citizens

who are affected thereby the right of

representation in the aldermanic elec-

tions for taose who exercise such extra-

territorial powers and (2) injunctive re-

lief against enforcement of the rezoning

orcinance as an unconstitutional exercise

of those powers. Wo attack is made on

the face of the general statutes.

OR COPY

Jurisdiction is asserted under the

Civil Rights Act, 42 U.S.C. Section 1983,

and 28 U.S.C. Section 1343(3), which

specifically confers federal jurisdiction

over claims arising under Section 1983,

The Complaint does not undertake to

allege the requisite amount in contro-

versy to confer federal question juris-

diction under 28 U.S.C. Section 1331.

Upon trial, Judge Gordon dismissed

the suit because (1) a municipality is

not a person within the meaning of 42

U.S.C. Section 1983 and (2) the action

complainea of is in the nature of an

annexation as to which the one man-one

vote requirement of the Equal Protection

Clause as vitalized in the reapportion-

ment cases is inapplicable. We affirm

the judgment but for different reasons

than those stated in the trial judge's

opinion.

Judge Craven, speaking for a three

judge court in Atkins v. City of Char-

lotte, 296 F.Supp. 1068 (W.D.N.C.), held

that 42 U.S.C. Section 1963 and 28 U.S.C.

Section 1343(3) may be invoked against a

municipality where the only relief sought

is injunctive or declaratory in nature to

redress the deprivation of a civil right.

Only declaratory and injunctive relief is

sought here. And we hold with Atkins v.

City of Charlotte, supra, that Winston-

Salem is a person within the meaning of

Section 1983 amenable to a claim for

equitable redress founded upon the

alleged deprivation of a civil right.

POOR

Sut we are nevertheless convinced by

the neavy weight of the case law that

plaintiffs have not stated a claim cog-

nizable under Section 1983 for which

jurisdiction is conferred by Section

1343(3). The language of Section 19983

granting redress for the Geprivation of

any right, privilege or imaunity has been

consistently construed to embrace only a

right, privilege or immunity pertaining

to “personal liberty, not dependent for

its existence upon the infringement of

property rights,” i.e. see Hague v. Com-

mittee for Industrial Organization, 307

U.S. 496 at 531 (Mr. Justice Stone's

opinion); ‘leddle v. Director, Patuxent

Institution, F.2d (4th Cir.).

See also Eisen Vv. Eastman, 721 F.2d 560

(2d Cir.); Howard v. iliggins, 379 F.2d

227 (10th Cir.); Bradford Audio Corpo-

ration v. Pious, 392 F.2c 67 (2d Cir.);

City of Boulder v. Snyder, 396 F.2a 853

(lOth Cir.); ifartin v. King, 417 F.2d 458

(10th Cir.); Willis v. Reddin, 418 F.2d

702 (9th Cir.). “Where, as here, thre in-

fringement is one solely of property

rights, §1331 is the jurisdictional

statute, and jurisdiction may be sus-

tainec only upon satisfaction of the

amount in controversy requirement."

Weddle v. Director, Patuxent Institution,

supra at °

Plaintiffs do not seek to vindicate

a suffrage right either by compelling

their participation in aldermanic elec-

tions or in any other manner. The suf-

frage right is presented only in the

OR COPY

context of alleged impairment of a prop-

erty right and seeks only the vindication

of that interest.

The trial court properly dismissed

the Complaint for failure to state a

claim cognizable under Section 1983. The

judgment is affirmed.

POOR

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

WINSTON-SALEM DIVISION

DONALD L. GARREN and

JAMES A. EDDINGER,

)

Plaintiffs ;

v. : ) No. C-228-WS-69

)

CITY OF WINSTON-SALEM,

WORTH CAROLINA,

Defendant

Norman B. Smith, Greensboro, North

Carolina, and Renn Drum, of Drun,

Liner & Redden, Winston-Salem,

North Carolina, for the Plaintiffs

W. F. Womble and John L. Garrou,

of Womble, Carlyle, Sandridge &

Rice, Winston-Salem, North Carolina,

for the Defendant

MEMORANDUM OPINION AND ORDER

GORDON, District Judge nat

Thais case coming on to be heard and

being heard before the undersigned,

United States District Judge for the Mid-

Gle District of North Carolina, upon the

OR COPY

PORTANT EA ws Oe a ee Oe ee

PE ee ee an) Ge ee ED MORIN

motion by the plaintiffs for a prelimi-

nary and permanent injunction, and it

being stipulated by and between counsel

that the case might be heard on its mer-

its for final and complete relief prayed

for by the plaintiffs, and it being so ~

heard, and the Court having heard all of

the evidence offered by the parties, and

having received and considered briefs

submitted by counsel for both parties,

makes the following findings of fact and

conclusions of law:

FINDINGS OF FACT

Plaintiffs are citizens and resi-

dents of Forsyth County, North Carolina.

Defendant is a municipal corporation

chartered by the State of North Carolina,

and located within the boundaries of

Forsyth County, North Carolina. Plain-

tiffs bring this action pursuant to 42

U.S.C. §1983, 28 U.S.C. §1343, and 28

U.S.C. §2201.

Defendant owns an eighty-five acre

tract of land near Salem Creek and Ebert

Road, which tract lies outside of but

within one mile south of the corporate

limits of the City of Winston-Salem. On

August 21, 1969, the City-County Planning

Board for the City of Winston-Salem and

County of Forsyth voted to recommend to

the Board of Aldermen of the City of

Winston-Salem that the petition of the

defendant to rezone this property from a

residential classification to an indus-

trial classification be granted. On

POOR |

september 16, 1969, the Board of Aldermen

for the City of Winston-Salem adopted

this recommendation, and the resulting

ordinance was effective from and after

this adoption. These acts performed by

the City-County Planning Board and the

Board of Aldermen were done pursuant to

authority vested in them by the General

Assembly of North Carolina.1

Defendants propose to construct a

sanitary lancfill on approximately sixty

acres of this tract and plan to use an-

other part of this same tract for sludge

drying beds at an existing sewerage

treatment plant. These uses of this

tract would not have been permitted with-

out the change from residential to indus-

trial zoning restrictions.

Plaintiffs contend that since they

do not reside within the corporate limits

of the City of Winston-Salem and there-

fore do not have the right to vote in the

election in which the Board of Aldermen

are chosen, they have been denied equal

protection of the laws, in that this body

caused a zoning change for property

adjacent to their own which will adverse-

ly affect their interests.

1 North Carolina General Statutes §160-

181.2; Laws 1947, Ch. 677--§23; Laws

1953, Ch. 777--§l.

IR COPY

CONCLUSIONS OF LAW

A three-judge district court pur-

suant to 28 U.S.C. §§2281, et seq., is

not necessary due to the limited nature

of this action. Ex Parte J. D. Collins,

277 U.S. 565, 48 S. Ct. 585, /2 L. ed.

990 (1928).

42 U.S.C. §1983 is not applicable to

this action. A municipal corporation is

not a “person” as the word is used in

this particular section. Monroe v. Pape,

365 U.S. 167, 81 S. Ct. 473, 5 L. ed. 2a

492 (1961).

Tnis action taken by the Board of

Aldermen was in the nature of an annexa-_

tion for the purpose of zoning, and al-

though the equal protection clause

applies to local government reapportion-

ment, it does not follow that it should

be equally applicable to annexation

cases. Detroit Edison Co. v. East China

Township Scnool District No. 3, 24/ F.

Supp. PEL {E.D. Mich. 1965); affirmed 378

FP. 2d 225 (6 Cir. 1967); cert. den. 389

U.S.°932, 88 S. Ct. 296, IT L. ed. 2d

284 (1967). In Hunter v. City of Pitts-

burgh, 207 U.S. , 28 S. Ct. , o2 Le

eq. 151 (1907), the court stated:

Municipal corporations are

political subdivisions of the

state, created as convenient

agencies for exercising such of

the governmental powers of the

state as may be entrusted to

them. . . The number, nature

ana duration of the powers con-

ferred upon these corporations

and the territory over which

they shall be exercised rests

in the absolute discretion of

the state. .. The state, there-

fore, at its pleasure, may

modify or withdraw all such

powers, may take without com-

pensation such property, hold

it itself, or vest it in other

agencies, expand or contract

the territorial area, unite the

whole or a part of it with an-

other municipality, repeal the

charter and destroy tne corpo-

ration. All this may be done,

conditionally or uncondition-

ally, with or without the con-

sent of the citizens or even

against tneir protest. In all

these respects the state is

supreme, and its legislative

body, conforming its action to

the state Constitution, may do

as it will, unrestrained by any

provision of the Constitution

of the United States. Although

the inhabitants and property

owners may, by such changes,

suffer inconvenience, and their

property may be lessened in

value by the burden of increased

taxation, or for any other reason,

they have no right, by contract —

or otherwise, in the unaltered

or continued existence of the

corporation or its powers, and

wa es Dns

there is nothing in the Federal

Constitution which protects them

from these injurious consequences,

The power is in the state, and

those who legislate for the state

are alone responsible for any

unjust or oppressive exercise of

it." (Emphasis added) 52 L. ed.

at 159.

Tne holding of this case as it affects

an annexation situation has not lost its

vitality by reason of the more recent

reapportionment cases. See Detroit

Edison Company v. East China Townsnip

District No. 3, supra, and Deane Hill

Country Club, In®orporated v. City of

Seep 6 cir 3575 F. 20 32. C157),

cert. den. 389 U.S. 975, 88 S. Ct. 476,

ISL. ed. 2d 467 (1967).

THEREFORE, IT IS ORDERED that

defendant's motion to dismiss this action

with prejudice be and the same hereby is

granted.

/s/ Eugene A. Gordon

Unitea States District Judge

February 20, 1970

NORTH CAROLINA GENERAL STATUTES 160-181.2

The legislative body of any munici-

pality whose population at the time of

the latest decennial census of the United

States was one thousand two hundred fifty

(1,259) or more, may exercise the powers

granted in this article not only within

its corvorate limits but also within the

territory extending for a distance of one

mile beyond such limits in all direc-

tions; proviced, that any ordinance in-

tendea to have application beyond the

corporate limits of the municipality

snall expressly so provide, and provided

further that such ordinance shall be

adopted in accordance with the provisions

set forth herein...

As a prerequisite to the exercise of such

powers, the membership of the zoning com-

mission or planning board charged with

the preparation of proposed regulations

for the one-mile area outside of the cor-

porate limits shall be increased to

include additional members who shall rep-

resent such outside area. The number of

additional members representing such out-

side area shall be equal in number to the

members of the planning board or zoning

commission, appointed by the governing

body of the municipality. Such addition-

al members snall be residents of the one-

mile area outside the corporate limits

and shall be appointea by the board of

county commissioners of tne county where-

in the municipality is situated. Such

members shall have equal rights, privi-

leges, and duties with the other members

;

¥.

eee Vee

of the zoning conumaission or planning

board in all matters pertaining to the

regulation of such area, both in prep-

aration of the original regulations and

in consideration of any proposed amend-

ments to such regulations; provided, that

the municipal legislative body may if it

deems wise, provide in its ordinance that

such additional members shall have equal

rights, privileges, and duties with the

other members in all matters, whcrever

they might arise.

In the event that a municipal legis-

lative body adopts zoning regulations for

the area outside its corporate limits, it

shall increase the membership of the

board of adjustment by adding five addi-

tional members, and by adding alternate

members equal to the number of alternate

members appointed to the existing board

of adjustment. Such members shall be

resicents of the one-mile area outsice

the corporate limits anc shall be appoint-

ec by the board of county commissioners

of the county wherein the municipality

is situated. Such members shall have

egual rights, privileges, and duties with

the other members of the board of adjust-

ment in all matters pertaining to the

regulation of such area; provided, that

the municipal legislative body may, if it

deems wise, provide in its ordinance that

such additional members shall have equal

rights, privileges, and duties with the

other members in all matters, wherever

they might arise. The concurring vote of

eight members of such enlarged board

shall be necessary to reverse any order,

requirement, decision, or determination

of any administrative official charged

with the enforcement of an ordinance.

In the event the board of county

commissioners fails to make the appoint-

ments provided for in this section within

ninety (90) days after receipt of a

resolution from a municipal governing

body requesting that such appointments be

made, the municipal governing body may

thereupon make such appointments....

IO A le - -

NORTH CAROLINA LAWS 1947, Ch. 677

Sec. 23. Zoning. The city and the

county may jointly or separately confer

upon the joint City and County Planning

Board the authority and the duty of

recommending revisions of existing

ordinances or preparing new zoning ordi-

hnances or resolutions for the city or

county or any portion thereof, in accord-

ance with the present zoning ordinance of

the City of Winston-Salem and any amend-

ments thereto and in accordance with the

authority for county zoning as herein

authorized.

Wherever in this act the City Plan-

ning Board or the Board of Aldermen of

the City of Winston-Salem or the Board of

Adjustment of the City of Winston-Salem

are given authority in the territory out-

side of the corporate limits of the City

of Winston-Salem, the exercise of such

authority beyond one mile from the corpo-

rate limits of the City of Winston-Salen

shall be subject to the approval of the

Board of Commissioners of Forsyth County.

Sec. 25. Grant of Power. The Board

of Commissioners for the County of Porsyth

is hereby empowered, in accordance with

the conditions and procedure specified in

the subsequent Sections of this Act, by

resolution to regulate any portion or

portions of Forsyth County which lie out-

side of the zoning jurisdiction of incor-

porated cities and towns, the location,

height, bulk, and size of buildings and

other structures, the percentage of lot

ad ee OR ee

which may be occupied, the size of yards,

courts, and other open spaces, the

éensity and distribution of population,

the uses of buildings and structures for

trade, industry, residence, recreation,

public activities or other purposes, and

the uses of land for trade, industry, re-

sidence, recreaticn, agriculture, water

supply, conservation, forestry or other

purposes.

Sec. 26. Zoning-Conferring of

Authority on Planning Board. In order to

avail itself of the zoning powers confer-

red by this Act, the board of county com-

missioners may confer upon the County

Planning Board or the joint City and

County Planning Board the additional

power and duty of performing the zoning

functions herein defined.

Sec. 42. Validity. If any Section,

clause, provision or portion of this Act

shall be held to be invalid or unconsti-

tutional by any court of competent juris-

diction, such holding shall not effect or

impair any other Section, clause, pro-

vision or portion of the ordinance.

ot + Oem Qrtothanpe fh

NORTH CAROLINA LAWS 1953, Ch. 777

Laws

Sec. 1. Chapter 677 of the Session

of 1947 is hereby amended as fol-

lows:...(a@) That Section Twenty-three be

amended as follows: by inserting between

the first and second paragraph thereof

the two following paragraphs:

— = .

"For the purpose of promoting

the health, safety, morals and

the general welfare of the City

of Winston-Salem and its inhabi-

tants and in order to give full

effect to the zoning ordinance

of the City of Winston-Salen,

as amended from time to time,

said zoning ordinance, together

with the zone map, and any amend-

ments thereto hereafter adopted,

shall operate and have effect

within three miles of the corpo-

rate limits of the City of

Winston-Salem, as now or here-

after established. The Board

of Aldermen of the City of Winston-

Salem may adopt ordinances from

time to time zoning and rezoning

all or so much of said three-

mile area as, within the judgment

of the board, should be brought

under the operation and effect

of the city zoning ordinance.

The board of adjustment and the

administrative officer, within

said three-mile area, shall have

and may exercise all the powers

and duties now or hereafter con-

ferred upon them by the zoning

orGinance of the City of Winston-

Salem.

Tne extension of said zoning

ordinance to said three-mile

area and the ordinance adopted

by the Board of Aldermen of the

City of Winston-Salem from time

to time shall conform with the

general development plan for

this area, if and when promul-

gated by either of the planning

boards herein created."

NORTH CAROLINA LAWS 1949, Ch. 851

Sec. 1. There shall be elected in

Forsyth County at the general election

to be held in the year 1950, and every

two years thereafter, by the duly quali-

fied voters thereof, a board of county

comaissioners composed of five persons

who shall serve for a term of two years

from the first Monday in December after

their election and until their successors

are elected and qualified.

CHARTER OF THE CITY OF

WINSTON-SALEM, NORTH CAROLINA

RERREAEAREKKKKKKKKKKKEKKKKREKE

Article 2, Sec. 12A-First. Elections

in Winston-Salem; biennial election of

mayor. On the first Saturday in May one

thousand nine hundred and thirty-three,

and on the first Saturday in May bienni-

ally thereafter, there shall be elected

a mayor, who shall be a resident of the

City of Winston-Salem. All persons

voting for mayor shall cast their ballots

in the respective wards in which said

voters reside, and the person receiving

the highest number of the aggregate of

the votes of all the wards for the office

of mayor shall be duly declared elected.

Second. Election of Aldermen. There

shall, on the first Saturday in May, 1933,

and on the first Saturday in May biennial-

ly thereafter, be elected eight aldermen

for said city, who shall hold their offi-

ces until their successors are qualified,

of whom one shall be elected from South

Salem Ward, one from North Salem Ward,

one from West First Ward, one from East

Ward, one from West Second Ward, one from

East Second Ward, one from South Third

Ward, and one from North Third Ward.

Such aldermen shall be residents of the

wards for which they are chosen, and .

shall be elected by the qualified voters

of such wards respectively.

Sixth. Registration. It shall be

the duty of the board of aldermen of the

City of Winston-Salem to cause a regis-

tration to be made of all the qualifieg

voters residing therein under the rules

and regulations prescribed for the regis.

tration of voters for general elections,

The board of aldermen may, when it deens

the same necessary, order a new registra-

tion of voters, and unless such new regis.

tration shall be ordered, the election

shall be held under the existing regis-

tration, with such revision as is herein

provided.

Seventeenth. Qualifications of

voters; removal from one precinct to an-

other. All qualified electors who have

resided for one year in the state of

North Carolina and for four months

immediately preceding an election within

the limits of any voting precinct of the

City of Winston-Salem, and not otherwise,

shall have the right to vote in such

precinct; provided, that a qualified

elector who shall have resided in the

City of Winston-Salem four months imnedi-

ately preceding an election shall not be

deprived of his right to vote by reason

of his having moved from one voting pre-

cinct into another within such period,

but such elector may register and vote

in the precinct from which he has moved.

A voter, otherwise qualified, re-

siding within any territory annexed to

the City of Winston-Salem on January l,

1949, or for four months next preceding

the elections to be held in May and June

1949, shall be deemed a resident of the

respective ward, including such annexed

territory, and shall be eligible to vote

in such elections. This provision shall

likewise apply to any future extension

of the city limits and to the next suc-

deeding elections.

SERENE IO MGT OER ES Het RI Wm Satyr y rege eo LE se OOS eT POLED YORI RO neR til apes hacen

SNR on dd

RSFSR 2 ek WHOS Dey 12 Seu

CODE OF ORDINANCES OF

Tas CITY OF WINSTON-SALEM

REKKKKKKKKKKKKKKKKKKKKKKK

Sec. 29-1. Title; Authority for

Adoption. The following comprehensive

zoning ordinance, to be known as THE WIN-

STON-SALE“ CITY ZONING ORDINANCE, is

acGopted pursuant to the authority of

Article 14, Chapter 160, as amended, of

the General Statutes of North Carolina

and Chapter 677 of the 1947 Session Laws

of North Carolina, as amended. As a part

of this ordinance, there is hereby desig-

natec a map to be known as the "Official

Zoning ilap of the City of Winston-Salen,

N.C." covering all of the areas within

the corporate limits of the City of

Winston-Salem and all the area within one

(1) mile beyond said corporate limits in

all directions, which Official Zoning Map

is incorporated herein by reference and

made a part of this ordinance, said map

being identifiec as a map consisting of

140 numbered sheets each of which is

entitled: “Official Zoning Map of the

City of Winston-Salem, N.C., adopted as

a part of the Winston-Salem City Zoning

Ordinance by the Board of Aldermen on the,

16th day of September, 1968," and signed

by Lewis Cutright, City Secretary, City

of Winston-Salem, the original of which

map (hereinafter referred to as the

"Official Zoning Map") is and shall re-

main on file and available to the public

in the office of the City-County Plan-

ning Board, Winston-Salem, North Carolina

ee eee eee

Sec. 29-20. Amendments. Proposals

to amend, supplement, change, modify or

repeal any of the regulations or the dis-

trict boundaries established by this

ordinance or hereafter established, may

be initiated by the Board of Aldermen,

by the City-County Planning Board, or by

tition of any interested person. A

petition by an interested person (which

term shall include a partnership and a

corporation) to amend or change the regu-

lations or district boundaries shall be

submitted to the Board of Aldermen

through and reviewed by the Planning

poaraG, Wnich shall consider its merit and

nake a recommendation to the Board of

Aldermen. In no case shall final action

by the Board of Aldermen be taken amend--

ing, Changing, supplementing, modifying,

or repealing the regulations established

by this ordinance or changing the district

boundaries hereby established until a

public hearing has been held by the Board

of Aldermen at which parties in interest

and citizens shall have an opportunity to

be heard. A notice of,such public hearing

shall be given once a week for two suc-

cessive calendar weeks in a newspaper

published in Winston-Salem, the first

publication of said notice being not less

than 15 days prior to the date fixed for

the hearing.

ETP ee

Sy seepenn:

OTE RESET MNT PASE OOTY as Nt

— a

ORDINANCE OF THE CITY OF WINSTON-SALEM

ENACTED SEPTEMBER 16, 1969

BE IT ORDAINED by the Board of

Aldermen of the City of Winston-Salem, as

follows:

Section 1. The Winston-Salem City

Zoning Ordinance and the Official Zoning

Map of the City of Winston-Salem, N.C.,

are hereby amended by changing from R6

and RS to I3 the zoning classification of

the following described property:

BEGINNING at a point in the north

line of property of the City of Winston-

Salem, said point also being the south-

west corner of Lot 5, Block 3928 as shown

on the Forsyth County Tax Maps; running

thence in a northwesterly direction 1079,%

feet more or less to a point; running

thence in a southwesterly direction ap-

proximately 288.42 feet to a point; run-

ning thence in a northwesterly direction

approximately 634.26 feet to a point in

the east bank of Salem Creek; running

thence in a northeasterly direction with

the east bank of Salem Creek 1675 feet

more or less to a point; running thence

with the eastern boundary of Lot 6 the

following seven directions and distances:

Northeast approximately 264 feet to a

point, northeast 220.44 feet more or less

to a point, northeast approximately 165

feet to a point, northwest approximately

106.26 feet to a point, northeast 231

feet more or less to a point, northeast

approximately 123.4 feet to a point, and

northwest approximately 33 feet to a

point in the east bank of Salem Creek;

running thence in a northeasterly direc-

tion along the east bank of Salem Creek

approximately 1050 feet to a point; run-

ning thence in a southeasterly direction

on a new line approximately 600 feet to

a point; running thence in a southwest-

erly Cirection on a new line approxi-

mately 850 feet to a point, being the

in a southwesterly direction along the

west line of Lot 4 approximately 1494.9

feet to a point, being the northwest

corner of Lot 5; running thence ina

southwesterly direction along the west

line of Lot 5 approximately 1326.6 feet

to the place of beginning, containing

84.68 acres more or less; being a part

of Lot 1, Block 3928 as shown on the

Forsyth County Tax Maps as they are

presently constituted.

Section 2. This ordinance shall be

effective from and after its adoption.

northwest corner of Lot 4; running thence

‘

Me Dan 8 ene

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.