Opposition Brief — Garren v. City of Winston-Salem

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IN THE SUPREME COURT OF THE

October Term, 1972

Donald L. Garren and James A. Eddinger,

Petitioners

v.

City of Winston-Salem, North Carolina,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

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Counsel for Respondent

William F. Womble

Womble, Carlyle, Sandridge & Rice

P. O. Drawer 84

Winston-Salem, N.C. 27102

John L. W. Garrou

Womble, Carlyle, Sandridge & Rice

P. ©. Drawer 84

Winston-Salem, N.C. 27102

~~

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1972

No. 474

Donald L. Garren and James A. Eddinger,

Petitioners

Vv.

City of Winston-Salem, North Carolina,

Respondent.

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ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

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Counsel for Respondent

Willian F. Womble

Womble, Carlyle, Sandridge & Rice

P. O. Drawer 84

Winston-Salem, N. C. 27102

John L. W. Garrou

Womble, Carlyle, Sandridge & Rice

P. O. Drawer 84

Winston-Salom, N.C. 27102

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INDEX

Table of Citations ii

Statement of the Case 1

Argument 4

I. The Court of Appeals was correct in

holding that the appellants have been

denied no rights of equal protection “

ll. Certiorari would be inappropriate

because the object of this action is not to

redress the deprivation of constitutional

rights and a favorable decision on the

constitutional question would not entitle

the plaintiffs to the relief prayed for. 8

Ill. There were adequate non-federal grounds

for the decisions of the lower co --

a mu ty is not subject to zoning

regulations 17

IV. Conclusion 24

TABLE OF CITATIONS

CASES:

Baker v. Carr, 369 U.S.

186 (1962)

Cedar Rapids v. Cox, 252 Iowa

948, 964, 108 N.W.2d 253,

262, 263

Cipriano v. City of Houma, 395

U.S. 701 (1969)

City of Scottsdale v. Municipal Court

of the City of Tempe, 368 P.2d

637 (Ariz. 1962)

Clinard v. City of Winston-Salem,

217 N.C. 119, 6S.E.2d 867

(1940)

. Dean Hill Country Club, Inc. v.

City of Knoxville, 379 F.2d

321 (6th Cir. 1967)

Detroit Edison Co. v. East China

Township District No. 3, 247

F. Supp. 296 (E.D. Mich. 1965)

affirmed, 378 F.2d 226 (6th Cir.

1967) cert. denied, 389 U.S. 962

(1967)

Flast v. Cohen, 392 U.S. 83, 102

(1968)

Fortson v. Morris, 385 U.S.

231 (1966)

10, 11, 1

ACAI E ANG NG AOE

Fortson v. Morris, 385 U.S.

231 (1966) 10, 11, 12

Garren v. City of Winston-Salem,

439 F.2d 140 (1971) 2

Hague v. C.1.0., 307U.S. 496 2

Hunter v. City of Pittsburgh, 207

U.S. 161 (1907) 6

James v. City of Charlotte, 183 N.C.

630, 112 S.E. 15 (1915) 19

Johnson v. Genessee County, 252

F. Supp. 567 (E.D. Mich. 1964) 14

Kidd v. McCanless, 200 Tenn.

273, 292 S.W.2d 40 13

Lynch v. Household Finance Corp.

405 U.S. 1972 2

Maryland Committee For Fair

Representation v. Tawes,

377 U.S. 656 (1964) 14

Matthews v. Hadley, 261 U.S.

127 (1959) 14

McKinney v. City of High Point,

237 N.C. 66, 74S.E.2d 440

(1952) 19

People V. O'Neil, 33 1. 24 164,

210 N.E.2d 526 (1965) 14

People v. Turner, 32 Ill. 2d 212,

205 N.E.2d 33 (1965) 14

Phoenix v. Kolodziejski, 399 U.S. ;

204 (1970) ° 5, 14

iii

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Pierre v. Jordan, 333 F.2d 951

(9th Cir. 1964) 16

Ratner v. City of Richmond, 201

N.E.2d 49 (ind. 1964) 22

Reynolds v. Sims, 377 U.S. 533

(1964) 14

Scales v. City of Winston-Salem,

189 N.C. 469, 127S.E. 543

(1925) 18

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

128 S.E.2d 590 (1962) 22

State ex rel Askew v. Kopp, 4

330 S.W.2d 882 (Mo. 1960) 21 :

:

STATUTES: f

:

1947 Session Laws of North Carolina, '

Chapter 677 17 ;

1953 Session Laws of North Carolina, .

Chapter 777 1,17 §

North Carolina General Statutes :

§ 160-181.1 21 :

North Carolina General Statutes :

§ 160-181.2 1

28 U.S.C. §1253 7

28 U.S.C. §1343 16

42U.S.C. §1983

STATEMENT OF CASE

The Board of Aldermen of the City

of Winston-Salem decided that the City

needed to establish additional sanitary

landfills in order to dispose of its

solid waste. The plan was to purchase

three tracts, in addition to the one al-

ready owned in the northeast quadrant

of the City, in order to serve the four

quadrants of the City. The City pur-

chased the tract that is the subject

of this lawsuit to serve the southwest

quadrant of the City. This tract was

located within one mile of the City

limits of the City of Winston-Salem

and, thus was subject to the extraterri-

torial zoning powers granted to munici-

palities of over 1250 population by

North Carolina General Statutes, § 160-

-181.2 and granted specifically to the

City of Winston-Salem by Chapter 777

of the 1953 Session Laws of the General

Assembly of North Carolina. Acting

under this authority, the Board of

Aldermen had on September 16, 1968,

zoned the property R-5 and R-6, re-

strictive classifications for areas

of single-family dwellings. Pursuant

to this same authority, on September

16, 1969, the Board of Aldermen rezoned

the property from R-5 and R-6 to I-3,

~

an industrial classification which, un-

like classifications R-5 and R-6, would

permit the construction of the sanitary

landfill.

The plaintiffs live approximately

1200 and 4200 feet, respectively, from

the landfill site. They brought this

action to enjoin the use of the property

for a sanitary landfill.

The District Court, after a hearing

on the merits, dismissed the complaint

for failure to state a claim cognizable

under 42 U.S.C. § 1983 and the plaintiffs'

appealed. The Court of Appeals affirmed

the District Court on the basis that the

plaintiffs’ claim was one for the in-

fringement of property rights and there-

fore not a violation of § 1983, citing

Hague v. C.1I.0, 30/7 U. S. 496. Garren v.

City of Winston-Salem, 439 F. 2d 140

(1971). The plaintiffs petitioned for

certiorari to this Court and the Court

vacated the decision of the Court of

Appeals in the light of Lynch v. House-

hold Finance Corp., 405 U. S. (1972).

On remand the Court of Appeals again af-

firmed the District Court on the basis

that the plaintiffs were not denied equal

protection and that even if their con-

stitutional rights had been violated,

they would not be entitled to the relief

they sought.

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I.

THE COURT OF APPEALS WAS CORRECT

IN HOLDING THAT THE APPELLANTS HAVE

BEEN DENIED NO RIGHTS OF EQUAL

PROTECTION.

While, it is submitted, it -

was unnecessary for the Court of Appeals

to reach the constitutional issue in

this case, it decided that issue cor-

rectly. The plaintiffs are not residents

of the City of Winston-Salem. While con-

ceding this, they contend that because

the City of Winston-Salem has the power

to zone real property within one mile

of its borders, the plaintiffs should be

given the right to vote in municipal elec-

tions. The Court of Appeals simply con-

cluded that the plaintiffs‘ conclusion

did not follow from its premise. It was

the decision of that Court that to treat

nonresidents of the City differently

from residents with respect to voting

rights is not discrimination, invidious

or otherwise, but is, in fact, a reason-

able classification. The property that

is the source of this litigation and

that was rezoned by the City of Winston-

Salem is not the plaintiffs* property,

but is property belonging to the City

itself. As the Court of Appeals stated:

-4-

“The case comes down to a situa-

tion where the City is zoning and

rezoning extraterritorial prop-

erty which it owns in accordance

with its constitutionally con-

ferred statutory powers." P.

2d at °

The fact that, as nonresidents, the

plaintiffs were not given the right to

vote for the body that exercised this

statutorily conferred right gives rise

to no constitutional violation.

The voting rights cases cited by

the petitioners have no bearing on this

case. This is not a case in which the

plaintiffs are seeking the right to vote

in municipal elections; rather, they are

seeking to enjoin the construction of a

landfill on City-owned property on the

ground that the property was rezoned by

a malapportioned body. ‘The petitioners

do not assert even the most tenuous

connection between the constitutional

rights they assert have been violated

and the relief they seek. Such decisions

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

and Phoenix v. Kolodziejski, 399 U.S.

204 (1970), are not even remotely in

point. In those cases, the relief

sought was the right to vote; in this

-5-

case, the relief sought is an injunc-

tion against the construction of a

landfill. The distinction is funda-

mental.

The Court of Appeals cast doubt

on the continuing validity of this.

Court's decision in Hunter v. City of

Pittsburgh, 207 U.S. 161 (1907), and

correctly held that even if that de-

cision is no longer valid, the plain-

tiffs would be entitled to no relief

here. It should be noted, however,

that several lower courts have held

that Hunter has not lost its vitality

by reason of the reapportionment cases.

See Dean Hill Country Club, Inc. v.

City of Knoxville, 379 F. 2d 321 (6th

Cir., 1967); Detroit Edison Co. v.

East China Township District No, a.

247.F. Supp. 296 (E.D. Mich.,1965),

affirmed, 378 F. 2d 226 (6th Cir.,

1967), cert. denied, 389 U. S. 962

(1967).

This Court may feel that the

Hunter case is no longer applicable

and that the lower court cases holding

that the reapportionment cases do not

affect its validity are incorrectly

decided. It is submitted, however,

that not only should such a reexamina-—

tion of Hunter be by direct appeal

-6-

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under the provisions of 28 U.S.C. § 1253

from the decision of a three-judge court,

but that the reexamination should be ac-

complished in a case where relief ap-

propriate to the issues raised is re-

quested. Here, as the subsequent sections

of this brief will point out, there is

no connection between the relief the

petitioners are seeking and the consti-

tutional violations they assert.

ar..*°

CERTIORARI WOULD BE INAPPROPRI-

ATE BECAUSE THE OBJECT OF THIS

ACTION IS NOT TO REDRESS THE

DEPRIVATION OF CONSTITUTIONAL

RIGHTS AND A FAVORABLE DECISION

ON THE CONSTITUTIONAL QUESTION

WOULD NOT ENTITLE THE PLAINTIFFS

TO THE RELIEF PRAYED FOR.

It is submitted that the fundamental

difficulty with the petitioners lawsuit

is that they have never established a con-

nection between the relief they seek, the

elimination of the landfill, with the

business of the Federal] Courts. In the

District Court, the Court of Appeals, in

this Court in the first petition for

certiorari and now in this Court again,

the plaintiffs have yet to hint at a rea-

son why their being “disenfranchised”

in the manner alleged entitles them to

enjoin the construction of the sanitary

landfill. Consequently, this case would

be inappropriate for the granting of

certiorari, no matter how the members

of this Court might feel about the os—~

tensible question raised in the Petition,

that of whether the petitioners as resi-

dents of the one-mile area surrounding

the City of Winston-Salem subject to its

-§-

zoning powers, should have the right to

vote for members of the Board of Alder-

men.

As the Court of Appeals pointed

out, if the petitioners are correct in

their contention that the local act per-

mitting the City of Winston-Salem to

zone property outside of its borders is

unconstitutional in that it does not

provide for a means by which the peti-

tioners and members of their class may

vote for the body exercising that power,

a decision upholding their contention

would either have prospective or retro-

active effect and either all zoning

ordinances passed pursuant to it by

improperly constituted boards would be

invalid or only future ordinances en-

ucted pursuant thereto would be so. In

neither case would the petitioners be

entitled to any relief here. On the

other hand, if the petitioners are not

attacking the constitutionality of the

enabling act, they are in effect saying

that an act validly performed pursuant

to a valid delegation of power by the

General Assembly is invalid, a non

sequitur. If the general statute per-

mitting extraterritorial zoning by

municipalities is constitutional, it

is a legal impossibility for a zoning

ordinance enacted pursuant to it to be

-9-

unconstitutional so long as the ordi-

nance is within the delegated power.

The petitioners’ answer to this

difficulty is that "it is traditional

in the laws of zoning that preexisting

land uses are accepted and validated,

whether or not they were the result of

prior zoning laws. And this Court has

established that prior laws enacted by

a malapportioned legislature are not

invalid. Fortson v. Morris, 385 U.S.

231 (1966)." (Petition for Writ of

Certiorari p. 22). The fact that pre-

existing uses are permitted under

zoning ordinances is, of course, ir-

relevant. It is not the preexisting

use that is the issue here, but the

future use of the property. Surely,

the petitioners cannot mean that under

the law of zoning adjoining property

owners may enjoin a neighboring property

owner to continue a preexisting use.

The petitioners' argument that prior

laws enacted by a malapportioned legis-

lature are valid is equally ineffective

in overcoming this fundamental diffi-

culty. In fact, the case of Fortson v.

Morris is supportive of the respondent's

position that no act of a malapportioned

legislative body may be enjoined. It

held that a malapportioned legislature

could not be enjoined-from selecting a

governor.

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The theory of the petitioners'

case seems to be that they, as voters,

can enjoin a single isolated act of a

legislative body on the ground that the

petitioners were not entitled to vote

for the members of that body. The pe-

tioners cite no cases here or in the

Courts below to support their theory.

The only attempt at distinction between

the zoning ordinance attacked here and

every other extraterritrial zoning en-

actment of the Board of Aldermen of the

City of Winston-Salem that can be gleaned

from the petitioners’ brief and argu-~

ments is that they are basing their

right to’an injunction on this one and

not on the others. Apparently,. their

contention is that a litigant may select

those enactments of a malapportioned

legislative body that he disapproves|

of and have them struck down, being at

the same time careful not to disturb the

legislation that he considers beneficial >

to his interest. The petitioners -would

go even further. They would not only.

enjoin the legislative act itself, but

what they perceive to be the consequences

of that act, the construction of the

landfill. There is no basis in law for

such an injunction. In Fortson v. Morris,

supra, this Court held that a legislature

could not be enjoined from selecting a

governor because the legislature was

; ~8a-

malapportioned. In Fortson, the issue

was simply the election of the governor.

Had the injunction been sought not

against the election of the governor

but against a specific act done by the

governor and even further some purported

result of that act, the facts would be

even more analogous to those in this

case.

In support of their theory, the

petitioners allege in their complaint

and have asserted throughout that they

have consistently voiced their opposition

to the proposed landfill site and feel

that the action brought is timely. Con-

ceivably, there are those who have con-

sistently voiced their support for estab-

lishing the landfill where it was located

and who live within one mile of the

corporate limits of the City of Winston-

Salem. Had the Board of Aldermen de-

clined to rezone the property, presum-

ably these people could have attacked

the R-5 and R-6 classifications on the

same grounds asserted here. By the

petitioners' logic, they would have

been entitled to an injunction invali-

dating the R-5 and R-6 classifications.

If the petitioners' theory were sound,

any person residing within one mile of

the corporate limits could ignore any

particular zoning ordinance of which he

-12-

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disapproved and, at the same time,

claim the benefit and protection

of any such ordinance of which he

approved. Neither logic nor law

supports such a proposition.

The petitioners would have their

case analogized to the reapportionment

cases. Again, the dichotomy asserts

itself. In the reapportionment cases,

as their popular name implies, the

attack was directed solely at the

constituency of the elected body, not

the validity of the acts done by the

body, nor the consequences of those acts.

The effect of the findings of the courts

in those cases was that the governing

body in question had to be reapportioned,

not that its acts were invalid. As was

stated by Mr. Justice Douglas in his

separate opinion in Baker v. Carr, 369

U. S. 186 (1962):

"The recent ruling by the Iowa

Supreme Court that a legislature,

though elected under an unfair

apportionment scheme, is nonthe-

less a legislature, empowered to

act (Cedar Rapids v. Cox, 252

Towa 948, 964, 108 N.W. 2d 253,

262, 263; c.f. Kidd v. McCanless,

200 Tenn. 273, 292 S.W. 2d 40) is

plainly correct."

~13-

Id. at 250 n. 5; see also People v.

Turner, 32 Ill. 2d 212, 205 N.EF. 2a

33 (1965); People v. O'Neil, 33 111.

2d 164, 210 N.E. 2d 526 (1965); John-

son _v. Genessee County, 252 F. Supp.

567 (E.D. Mich. 1964).

In Reynolds v. Sims, 377 U. S.

533 (1964), this Court assumed that

the invalidly apportioned Alabama legis-

lature retained the power of legisla-

tive action and in Maryland Committee

for Fair Representation v. Tawes, 377

U. S. 656 (1964), this Court recognized

the "inherent power" of the Maryland

legislature even though it was elected

in violation of constitutional require-

ments. See also Matthews v. Hadley, 361

U. S. 127 (1959), where this Court af-

firmed without opinion the trial court's

wefusal to strike down Indiana's gross

income tax on the ground that the legis-

lature was malapportioned.

The petitioners place some reliance ‘

on Cipriano v. City of Houma, 395 U.S. 701)

(1969), and Phoenix v. Kolodziejski, 399 }

U. S. 204 (1970). In both of these cases, §

the plaintiffs sued to enjoin the issuance}

of municipal bonds which had been autho- &

rized at an election in which the plain-

tiffs had not been allowed to vote. In

both cases, the plaintiffs sought to

prevent the direct consequence of the

~14-

— . 2 ATO AP ne OM A Moet

tainted election, the issuance of bonds.

These cases offer no support for the

proposition that acts done pursuant to

the enactments of a de facto legislative

body are invalid.

The petitioners were not allowed

to vote for the Board of Aldermen that

enacted the original zoning classifica-

tion, R-5 and R-6. If the ordinance

rezoning the property to classification

I-3 is invalid, then so must have been

the original zoning enactment. It is

clear that the petitioners have no stand-

ing as voters to attack either enactment,

but if they attack one, the other must

necessarily fall. Any other conclusion

is absurd. Whether the petitionerd de-

fect is stated in terms of a lack of

standing to sue because there is no

nexus between the status asserted by

the litigant and the claim he presents

(Flast v. Cohen, 392 U. S. 83, 102 [1968])

or whether it is stated in jurisdictional

terms as a failure to assert a claim

that arises under the Constitution or

laws of the United States, the effect

is the same.

42 U.S.C. § 1983 obviously contem-

plates that the action brought pursuant

to it be designed to redress the depri-

vation of rights and not for some other

-15-

purpose, wholly unrelated to the depri-

vation. In Pierre v. Jordan, 333 F. 2d

951 (9th Cir. 1964) the plaintiff brought

an action based in part upon 42 U.S.C.

§ 1983 to prevent the formation and

financing of a waterworks district. She

brought the action on behalf of herself

and other property owners in the affec-

ted area. The Court held that the Dis-

trict Court did not have jurisdiction

under § 1983 and 28 U.S.C. § 1343 be-

cause

". . . .[T]he prime purpose of

the suit is not to redress those

asserted constitutional depriva-

tions per se but, on these and

other grounds, to put the water-

works district out of business.

x* zeke

“Where there is some other prin-

cipal objective of the litigation,

and the deprivation of constitu-

tional rights is asserted only as

a means of achieving that objec-

tive, the subject matter is not

cognizable under the Civil Rights

Act, and the district court juris-

diction thereunder is lacking."

333 F. 2d at 957, 958.

-16-

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CP PEINSS URN AO RAR 8s OR aA RETR Refer

Iit.

THERE WERE ADEQUATE NON-FEDERAL

GROUNDS FOR THE DECISIONS OF THE

LOWER COURTS-- A MUNICIPALITY IS

NOT SUBJECT TO ZONING REGULATIONS.

For the petitioners to be entitled to

the relief they seek, it would be neces-

sary for a court to find (1) that the

local public acts (Session Laws 1947, Ch.

@7, Section 23, et seg., as amended Ses-

sion Laws 1953, Ch. 777, Section 1) and

by implication G. S. § 160-181.2 are un-

constitutional in allowing a municipality

to exercise extraterritorial zoning powers

without giving the franchise to those

living in the areas over which the powers

are exercised; (2) that because the statute

is unconstitutional, the zoning regula-

tion attacked here, and no other, is void

and should be struck down, and (3) because

the zoning regulation is void, uses to

which the property has been put that would

violate the prior zoning ordinance may

be enjoined by a Federal Court. It is

the third proposition to which this sec-

tion of the brief is addressed.

At the outset, it should be noted

that the petitioners have indicated no

reason why they would be entitled to en-

join the proposed use upon establishing

-17-

the invalidity of the rezoning ordinance.

Assuming the rezoning ordinance and no

other enactment of the allegedly mal-

apportioned board is invalid, there is

still no basis for enjoining the proposed

use. The cases are clear in North Caro-

lina and elsewhere that a municipality

may ignore its own zoning enactment or

that of another governmental body in

performing a governmental function. Thus,§

the Board of Aldermen did not need to

rezone the property in the first place

in order to construct the landfill.

Under State law, the landfill could have

been built regardless of how the prop-

erty was zoned and the constitutionality

of the zoning ordinance need not have

been decided.

It is clear under North Carolina

law that in constructing a sanitary land-

fill, a municipality is performing a

governmental function. In Scales v.

City of Winston-Salem, 189 N.c. 469,

127 S.E. 543 (1925), the plaintiffs

sought to recover damages for personal

injuries allegedly suffered from the

City's operation of an incinerator for

the burning of garbage. In holding that

the plaintiff could not recover, the

Supreme Court of North Carolina stated:

-18-

“In applying these principles,

we must hold that the incinerator

was built in the discharge of a

governmental function. The power

to maintain public works, build-

ings and improvements; to remove

garbage, and to provide for the

health, comfort and welfare of

the people is conferred by

statutes on the cities and towns

of the State ... It was in pur-

suance of this legislation that

the furnace was constructed; and

- - « the acts complained of were

in the performance of duties auth-

orized by laws solely for the pub-

lic benefit, governmental in char-

acter and not merely private and

corporate."

Id. at 471, 127 S.E. at 545. See also

James v. City of Charlotte, 183 N.C.

630, 112 S.E. 15 (1915).

It is equally clear in North Caro-

lina that a municipality is not bound by

its own zoning enactments. In McKinney

v. City of High Point, 237 N.C. 66, 74

S.E. 2d 440 (1952), the plaintiffs com-

plained that the erection by a munici-

pality of a water storage tank in con-

nection with its waterworks system was

in violation of the zoning ordinances

-19-

of the City of High Point. After first

finding that the construction of a

water tank was the performance of the

governmental function, the Court examined

the cases in other jurisdictions on the

point of whether or not a municipality

is bound in the performance of a govern-

mental function by zoning regulations

and concluded as follows:

"The Complaint does not state

the purpose for which the de-

fendant purchased land, and

erected the water tank. It is

a fair inference that it was

erected for the purposes._af

public health, sanitation, fire

protection and selling water for

gain to the inhabitants and

businesses within the City.

Under our former decisions, we

conclude, and so hold, that the

erection of this water tank was

done by the defendant in its

governmental capacity and that

its zoning ordinances did not

apply."

Id. 75, 74 S.E. 2d at 446.

It was evident that the General

Assembly of North Carolina intended that

municipalities not be bound by zoning ;

ordinances in the performance of govern-

mental functions which do not involve

-20-

OE mt ~~ oO KALLE BEANS Ho hiog MRIS HOS BER al

the construction or erection of buildings

when it enacted N. C. General Statutes

§ 160-181.1 which makes zoning regulations

_ applicable to the erection and construc-

tion of buildings by the State and its

political subdivisions. The statute

could have been made applicable to all

governmental functions, rather than just

the construction or erection of buildings;

it was not.

The petitioners in the lower courts

have advanced the theory that if the

zoning regulation in question were struck

down, the county could step in and enact

zoning regulations that presumably would

bind the City of Winston-Salem. The

cases hold, however, that a municiplaity

is no more bound by a zoning regulation

of another governmental entity than it

is by its own. City of Scottsdale v.

Municipal Court of the City of Tempe,

368 P. 2d 637 (Ariz. 1962); State ex rel

Askew v. Kopp, 330 S.W. 2d 882 (Mo. 1960).

Since under State law, the respon-

dent could have ignored its own zoning

ordinances and was not subject to the

zoning jurisdiction of the county of

Forsyth, an adjudication of the uncon-

stitutionality of the legislation en-

abling the City to exercise extraterri-

torial zoning authority would not give

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t SUTRA REAL RY Lantie” E PARE ER RITA EST 5 a RT RRC CA

the petitioners the relief they seek.

Even more important, the peti-

tioners have no standing under State

law to enjoin the proposed use of the

property on the grounds that the zoning

ordinance is invdid. This is not only

a collateral attack upon the ordinance

itself, but the petitioners have not

shown the requisite interest in the

controversy to give them standing. Ob-

viously, they have no standing as voters

to prevent the construction of landfills.

By the same token, under State law, they

have no standing as "neighboring property

owners" to enjoin the use to which the

property is being put. Their only basis

for standing is that they do not like

having the landfill near them. This is

insufficient. Ratner v. City of Rich-

mond, 201 N.E. 2d 49 (Ind. 1964). ‘Tne

petitioners cite two North Carolina cases,

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

E. 2d 590 (1962) and Clinard v. City of

Winston-Salem, 217 N.c. 119, 6 S.E. 2d

867 (1940) for the proposition that the

constitutionality of a zoning enactment

may be tested by an action for an in-

junction. It need hardly be said that

these cases involve actions to enjoin

the enforcement of the ordinance inso-

far as it inhibited the use of the plain-

tiffs' own property. Obviously, these

cases have no bearing on the facts at

hand.

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IV.

CONCLUS ION

The gist of the petitioners’

claim is that they do not like having

a sanitary landfill near their homes

and that they would like to prevent the

use of the respondent's property for

that purpose. It is submitted that

they cannot frame this claim in terms

of the jurisdiction of the Federal

Courts and that the petition for a writ

of certiorari to the Court of Appeals

for the Fourth Circuit should be denied.

Respegtfully submitted thised 7K

day of » £972.

W. F. Womble

Witla.

/ /John L. W. Garrou

Post Office Drawer 84

Winston-Salem, N. C. 27102

Attorneys for Respondent

Of Counsel:

Womble, Carlyle, Sandridge & Rice

2400 Wachovia Building

Winston-Salem, N. C. 27102

Telephone: (919) 725-1311