Higginbotham v. Barrett
| Decision Date | 14 February 1973 |
| Docket Number | No. 72-1526.,72-1526. |
| Citation | 473 F.2d 745 |
| Parties | R. J. HIGGINBOTHAM and Mrs. Mary S. Dennis, Plaintiffs-Appellants, v. E. W. BARRETT and E. P. Ellison et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Moreton Rolleston, Jr., Atlanta, Ga., for plaintiffs-appellants.
A. Sidney Parker, Marietta, Ga., John W. Stokes, Jr., U. S. Atty., Eugene A. Medori, Jr., Asst. U. S. Atty., Atlanta, Ga., Glen R. Goodsell, Jacques B. Gelin, Attys., Kent Frizzell, Asst. Atty. Gen., Land & Natural Resources Div., Dept. of Justice, Washington, D. C., for defendants-appellees.
Before GEWIN, BELL and GODBOLD, Circuit Judges.
This appeal is from the dismissal of a suit seeking injunctive and declaratory relief against the Commissioners of Cobb County, Georgia, the County Engineer, and the Regional Administrator of the Environmental Protection Agency (EPA).
Plaintiffs reside on property adjacent to property as to which an application was pending to rezone it from residential to apartment use. They contended that no public sewerage facilities were available for the proposed apartments and that apartment use would pollute the Chattahoochee River and other streams of Cobb County. Plaintiffs reside near the river. They also alleged that there was no comprehensive zoning plan in Cobb County and that this resulted in their having to engage in multiplicious administrative proceedings before the zoning officials in order to protect their residential property.
The County Commissioners of Cobb County are empowered to rezone property, and the County Engineer is in charge of issuing building permits. The Regional Administrator of the EPA was named as a defendant on the basis of his duties in administering the Federal Water Pollution Control Act (33 U.S.C.A. § 1151 et seq.).
Plaintiffs sought injunctive relief as follows: (1) to enjoin the defendant county commissioners from approving the rezoning application; (2) to enjoin the county engineer from issuing a building permit for use on the property in question; (3) and to enjoin the Regional Administrator of the EPA from making grants to Cobb County for sewage treatment purposes. They also sought a declaratory judgment that the alleged present pollution of streams, including the Chattahoochee River, by sewage from Cobb County was in violation of the Water Pollution Control Act, supra.
It appeared without dispute that the property had not been rezoned. The district court concluded that relief against the county officials was premature, absent the grant of the application to rezone. The county officials were for that reason dismissed. The EPA Regional Administrator was dismissed on the ground that plaintiffs had no standing under the Federal Water Pollution Control Act, 33 U.S.C.A. § 1151, et seq., to compel any action on his part. The claim for declaratory judgment that the present pollution of the Chattahoochee by sewage in Cobb County was in violation of the Federal Water Pollution Control Act was dismissed on the ground that the Act does not create a private cause of action. This appeal followed.
Here plaintiffs narrow their argument to two questions. First, they assert a lack of due process and equal protection theory for the suit against the county officials. This theory is based on the alleged lack of a comprehensive county land use plan whereunder they might protect their residences from encroachment and the streams from pollution without the necessity of attending monthly hearings where applications to rezone were being considered. Second, they urge that they have standing to sue under the Water Pollution Control Act. They urge that a finding of standing would perforce require further proceedings in the district court on the issues related to the Act. The thrust of the claim under the Water Pollution Control Act, as we understand it, is that the Regional Administrator was obligated, before making grants, to require that the county adopt a comprehensive land use plan to avoid water pollution. The further thrust of the claim is that a cause of action would lie under the Act against the county officials to abate the alleged pollution. They seek injunctive relief against the proposed rezoning as a part of the remedy under this claim.
We first discuss the claim against the county officials in the context of plaintiffs' claim for relief based on an equal protection and due process basis. This is aside from the claim under the Water Pollution Control Act. First, it would appear that the claim sounds more nearly in terms of due process than equal protection. That, however, is of little moment in the case because we conclude that no substantial federal constitutional question was presented in any event on this particular theory.
The law is settled that the zoning of property, including the preparation of comprehensive land use plans, involves the exercise of judgment which is legislative in character and is subject to judicial control only if arbitrary and without rational basis. Shenk v. Zoning Commission of the District of Columbia, 1971, 142 U.S.App.D.C. 267, 440 F.2d 295, 297; Diedrich v. Zoning Commission of the District of Columbia, 1967, 129 U.S.App.D.C. 265, 393 F.2d 666; City of St. Paul v. Chicago, St. Paul, Minneapolis and Omaha Railway Company, 8 Cir., 1969, 413 F.2d 762, 766-767. Cf. Goldblatt v. Town of Hempstead, 1962, 369 U.S. 590, 594-595, 82 S.Ct. 987, 8 L.Ed.2d 130.
There is no claim or showing of arbitrariness nor any assertion of a lack of rational basis in the proposed zoning. What is proposed is no more than the usual exercise of the police power of the county to the end of regulating land use. There was no showing that the apartments will be allowed to operate without sewage disposal in some form. Indeed, it appears that a water pollution control program is well under way in the county. The purpose of making the EPA Regional Administrator a party was to stop the program until a comprehensive land use program was adopted as a part of controlling water pollution.
Nor is there a showing of arbitrariness in the procedure used in hearing applications to rezone property. Plaintiffs do not claim lack of notice or that the hearing procedures are inadequate. Rather they complain of the frequency of the hearings. Frequency, as the claim goes, means attending monthly hearings. This type of procedure does not rise to the level of being arbitrary or a denial of due process.
We come then to the question of the standing of plaintiffs to sue the county officials or the Regional Administrator, or both, under the Water Pollution Control Act. The answer to this question depends on an interpretation of the Act in light of the law of standing. In Johnson v. Morton, 5 Cir., 1972, 456 F.2d 68, 70-71, we said:
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