South Gwinnett Venture v. Pruitt

482 F.2d 389

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 4, 1973
• Docket: Nos. 71-3420, 71-3421
• Status: Published

Opinions

INGRAHAM, Circuit Judge:

These appeals arose from suits filed in the district court by the respective plaintiffs, each against the Commissioners and the Chief Building Inspector of Gwinnett County, Georgia, each praying that certain portions of the zoning ordinance enacted by the Commissioners be declared unconstitutional and that the Chief Building Inspector issue building permits for the constructions of apartments upon the subject property. The district court dismissed the suits upon the motions of the defendants, holding that the rezoning applications called for a quasi legislative judgment by the zoning board, and as such the district court was without subject-matter jurisdiction to review the actions for anything more than arbitrariness and interest on the part of the board members.

The use of non-record secret evidence by the Gwinnett County Commissioners in denying appellants’ application for the rezoning of certain tracts of land from single family residential classification to multi-family apartment use designations has projected purely local land use questions into a federal forum.

Contending that their applications had been denied by the Commissioners on evidence dehors the record and that the Commissioners’ reliance on such evidence deprived them of due process, the appellants brought suit against the County Commissioners in federal district court asserting jurisdiction under 28 U.S.C. § 1331(a). The district court, noting that federal courts are properly loathe to stretch their limited jurisdiction to become super zoning boards of appeal, found the denial of an application for rezoning to be a quasi-legislative act. As such, the court reasoned it was not impermissible for the quasi-legislators to use non-record materials in exercising their judgment. Consequently, the court dismissed appellants’ complaint. 341 F.Supp. 703 (N.D.Ga., 1971).

We differ in only one salient regard from the decision of the district court. Our difference concerns the nature of an application for the rezoning of a tract of land. As we recently noted in Higginbotham v. Barrett, 473 F.2d 745 (5th Cir., 1973) [1973] :

“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, 142 U.S.App.D.C. 267, 440 F.2d 295, 297; Diedrich v. Zoning Commission of the District of Columbia, 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.”

The adoption of a legislative plan for the entire community must be distinguished from the treatment which a specific tract of land receives when its owner petitions for reclassification under that plan. As the record in this case demonstrates, consideration of that petition is an exercise of legislative power in a case by case adjudicative setting. Compare, Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908) with Bi-Metallic Inv. Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915). See, Hot Shoppes, Inc. v. Clouser, 231 F.Supp. 825 (D.C., 1964), affirmed 120 U.S.App.D.C. 353, 346 F.2d 834 (1965); and Donovan v. Clarke, 222 F.Supp. 632 (D.C., 1963). Cf. State ex rel. Ludlow v. Guffey, 306 S.W.2d 552 (Mo., 1957); Morton v. Mayor and Council of Clark Township, 102 N.J.Super. 84, 245 A.2d 377 (1968). See, generally, K. Davis Administrative Law Text. Thus distinguished from the legislative action of adopting a comprehensive zoning plan, the adjudicative decision inherent in tract rezoning requires the decision maker to adhere to concepts of minimal due process. Hornsby v. Allen, 326 F.2d 605 (5th Cir., 1964); Hot Shoppes, Inc. v. Clouser, supra; Donovan v. Clark, supra. Here, appellants’ complaint alleged that rezoning of the property had been denied by the Commissioners without a statement of their reasons and by recourse to evidence which was not in the record. Such administrative action has long been condemned, Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938); Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937); United States v. Abilene & Southern Ry. Co., 265 U.S. 274, 44 S.Ct. 565, 68 L.Ed. 1016 (1924); Interstate Commerce Commission v. Louisville & Nashville RR Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431 (1913); Hornsby v. Allen, supra, and we do so here.

The orders of the district court are reversed and the causes remanded for proceedings consistent herewith.