# Opposition Brief — Garren v. City of Winston-Salem

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1039

## Text

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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

(AP RRELALALAALALILLALESSEL ELA LES EEE EES EE SE

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI
ERRAARARERRRERRERRRRERERERERRRRRERRRERRRER

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1426%3A2. Public record. Not legal advice.