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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1039

## Text

FILE COPY

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

i
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

ii
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

iv
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

hs

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

2

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,

3

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.

4
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

5

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

6

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

7

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

9

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

10

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

1l

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

12

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

13

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,

14

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

15

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

16

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

17

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

—

18

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-

19

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),
to

—

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

2c

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

21

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,

22

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).

23
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

24
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

25

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

26

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.

27

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

28

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

29

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

30

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

31

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

Pd

OR COP’Y

32

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

33
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 - =.) =

34

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

36

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

37

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

38

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

39

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

40

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 |

41

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

42

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

43

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

45

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

45

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

a
;
5
7
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46

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,

47

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 - -

48
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

49

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

50

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

51

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."

52

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.

53

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

54

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

55

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

56

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

57

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

ed

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— a

58

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

59

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1426%3A1. Public record. Not legal advice.