Crow v. Brown

• Decision Date: 27 October 1971
• Docket Number: Civ. A. No. 14954,15203.
• Citation: 332 F. Supp. 382
• Court: U.S. District Court — Northern District of Georgia
• Parties: Trammell CROW and Albert Susman v. Charlie BROWN, Milton Farris, Goodwyn Cates as Commissioners of Roads and Revenues; Earl R. Garner, as Director of Inspections & Licenses; Larry Fonts, Planning Director of Fulton County; United States Department of Housing and Urban Development; Lester H. Persells, Executor Director, Atlanta Housing Authority; City of Atlanta, Defendants. Ervin Company, Intervenor, Samuel Carr and Hattie Mae Calhoun, Plaintiff-Intervenors. Samuel CARR and Hattie Mae Calhoun, Plaintiffs on behalf of themselves and others similarly situated, v. Charlie BROWN et al., Defendants.

332 F. Supp. 382

Trammell CROW and Albert Susman v. Charlie BROWN, Milton Farris, Goodwyn Cates as Commissioners of Roads and Revenues; Earl R. Garner, as Director of Inspections & Licenses; Larry Fonts, Planning Director of Fulton County; United States Department of Housing and Urban Development; Lester H. Persells, Executor Director, Atlanta Housing Authority; City of Atlanta, Defendants.

Ervin Company, Intervenor, Samuel Carr and Hattie Mae Calhoun, Plaintiff-Intervenors.

Samuel CARR and Hattie Mae Calhoun, Plaintiffs on behalf of themselves and others similarly situated, v. Charlie BROWN et al., Defendants.

Civ. A. Nos. 14954, 15203.

United States District Court, N. D. Georgia, Atlanta Division.

September 7, 1971.

On Motion for New Trial October 27, 1971.

Moreton Rolleston, Jr., Atlanta, Ga., for plaintiffs Crow and Susman.

John N. Myer and Robert B. Newman, Atlanta, Ga., for plaintiffs-intervenors Carr and Calhoun.

Robert G. Young, Webb, Parker, Young & Ferguson, Atlanta, Ga., for defendants Brown, Farris, Cates, Garner and Fonts.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Atlanta, Ga., for intervenor Ervin Co.

Henry L. Bowden and Ralph H. Witt, Atlanta, Ga., for City of Atlanta.

King & Spalding, Atlanta, Ga., for Lester H. Persells.

John W. Stokes, Jr., U. S. Atty., Beverly B. Bates, Asst. U. S. Atty., for HUD and George Romney.

ORDER

EDENFIELD, District Judge.

The City of Atlanta is a fair and progressive city which, despite its wealth, growth, and physical beauty, is beset by the same deep-seated and long-range problems that are found in most American cities today. Atlanta's slums are the root-cause of many of these problems. From these jugs of wrath emanate much of the city's crime, drug addiction, unemployment, and racial unrest.

In an attempt to combat the slums, which are inhabited mostly by poor blacks, Atlanta has been engaged in a program of low-rent public housing administered by the Atlanta Housing Authority "AHA". This public housing has tended to attract large numbers of poor blacks, often illiterate and unskilled, from outlying areas and other sections of the city. At the present time over 80% of the tenants in public housing are black, and between 88% and 90% of the 30,000 people on the waiting list for such housing are black. Moreover, by design and chance, most of this public housing has been concentrated within eight of Atlanta's 132 square miles, in or near Atlanta's slums. Of the 14,000 units of public housing, 55.7% are located in areas which are 90% to 100% black, and another 19.4% in areas which are 70% to 90% black.

Atlanta lies within Fulton County, and the AHA has entered into a Cooperation Agreement with both the city and the county which commits them to assist the AHA in its public housing program. Despite this agreement, and despite the fact that the jurisdiction of the AHA extends ten miles beyond the city limits of Atlanta into unincorporated Fulton County, not a single unit of low-rent public housing has ever been built in the unincorporated area.

While poor blacks have been attracted to the low-rent public housing in Atlanta and the city's problems have rapidly mounted, whites have been fleeing in increasing numbers. In 1960 35% of the residents of Atlanta were black; today 51% are black. The public school population of Atlanta was 30% black; today it is 70% black. A fair percentage of the whites leaving Atlanta have moved to the unincorporated areas of Fulton County; a similar percentage of blacks from those areas have moved to the city.

Within the immediate future, unless drastic changes occur, it is not merely possible but certain that Atlanta will become, in essence, a black city with a solid white perimeter. These two lawsuits, though analytically different, have been consolidated by this court because together they involve a plan to prevent this from happening to Atlanta by having some low-rent public housing built in unincorporated Fulton County. Some may say that this plan is unwise or that it may not succeed. It is not for this court to make such a determination. Unquestionably the design of the plan is to alleviate to some degree the crisis now at hand in Atlanta, and the goal of the plan is to preserve Atlanta's future as a city in which both whites and blacks may live.

What this court must decide is whether certain actions of Fulton County officials, which have so far frustrated the initiation of this plan that may help save Atlanta, are unconstitutional and must be stopped.

I. BOATROCK AND RED OAK

A. Background

Plaintiffs Crow and Susman and plaintiff-intervenor Ervin Company own tracts of land which lie in the unincorporated section of Fulton County within ten miles of the city limits of Atlanta, and hence within the jurisdiction of the Atlanta Housing Authority. Both tracts of land, which shall be referred to respectively as "Boatrock" and "Red Oak", were zoned by Fulton County for the construction of apartments before plaintiffs purchased them, and they are still zoned for apartments today. Plaintiffs contend that after they purchased the tracts elaborate plans were prepared for the construction of apartment projects on the two sites and all building code and planning requirements of the County were satisfied. They intended to participate in a "turnkey"¹ project under which the completed apartments would be sold to the AHA which, in turn, planned to lease the apartments to qualified tenants. Plaintiffs claim that when defendants Brown, Farris, Cates, Garner and Fonts "the County" learned that Boatrock and Red Oak were to be low-rent public housing projects in which all tenants would probably be black, they caused plaintiffs' respective applications for building permits to be denied for racial reasons.

Plaintiffs contend that by such action the County has violated the Equal Protection Clause of the Fourteenth Amendment, and they seek declaratory and injunctive relief. Suits of this nature are authorized by 42 U.S.C. § 1983 (1964) and the Court finds it has jurisdiction on several bases, including 28 U.S.C. §§ 1331 and 1343(3), (4). See Gomez v. Florida State Employment Service, 417 F.2d 569, 580 (5th Cir. 1969).

In July, 1966, Mr. Joe H. Estes, owner of Boatrock at the time, filed petitions with Fulton County for the rezoning of that land from a "residential" to an "apartments" category. Action on the petitions was apparently deferred to allow Mr. Estes time to work on a site plan with the Fulton County Department of Planning. In November a preliminary hearing was held before the Atlanta-Fulton County Joint Planning Board concerning Mr. Estes' petitions for rezoning. The Joint Planning Board recommended that the petitions be denied as premature. On December 2, 1966 Mr. Estes appeared before the Fulton County Commissioners of Roads and Revenues and requested the approval of his petitions. At this meeting Mr. Estes stated that his project was going to be part of a large, long-range plan, and that he intended to build "nice apartments, town houses, and a shopping center." He also "called attention" to the development of an industrial park nearby and the increasing number of airline personnel expected in the area. He said he had made the necessary arrangements for utilities and would submit detailed plans to the Planning Department subsequent to the rezoning. In executive session, the Commissioners heard the planning and zoning administrators state that the Planning Department felt the petitions should be denied without prejudice because they were premature. Nevertheless, the Commissioners unanimously adopted a resolution approving the zoning change requested by Estes, "notwithstanding the adverse recommendation" of the Joint Planning Board, "subject to approval of plans by the Planning Staff." In 1967 Estes sold Boatrock to Crow and Susman.

In the spring of 1969 North American Properties, Inc., owner of Red Oak at the time, filed a petition to rezone that land from an "agricultural" to an "apartments" category. In May the Atlanta-Fulton County Joint Planning Board recommended denial of the petition. A hearing was held June 4, 1969 before the Fulton County Commissioners of Roads and Revenues at which counsel for North American, Mr. Charles Carnes, appeared and sought approval of the petition despite the adverse report of the Joint Planning Board. Mr. Carnes stated that North American was prepared to satisfy all planning requirements in connection with a proposed project at Red Oak, and he also submitted a list of seventeen points in reference to the project, the first of which was: "We agree to construct in accordance with the site plan." In executive session, the Commissioners adopted a resolution approving the zoning change requested by North American, "notwithstanding the adverse recommendation" of the Joint Planning Board, "pursuant with stipulations presented by Mr. Carnes." The Ervin Company obtained an option to purchase Red Oak from North American in January 1970 and took title November 5, 1970.

Meanwhile, the Atlanta Housing Authority became interested in developing low-rent public housing in unincorporated Fulton County. In May, 1969, Lester Persells, Executive Director of AHA, wrote to Walter Mitchell, Chairman of the Commissioners of Roads and Revenues, and mentioned that AHA had received an allocation of 2,000 units for low-rent public housing from the Housing Assistance Administration of the United States Department of Housing and Urban Development "HUD", and that AHA wanted to develop perhaps 1,000 of these units in unincorporated Fulton County. Persells suggested that a joint meeting be held to discuss plans for such housing, and such a meeting was held in July. In September, defendant E. Larry Fonts, Director of the Fulton County Department of Planning, sent a detailed site evaluation report to Persells on three sites proposed for "turnkey" projects in that portion of unincorporated Fulton County within AHA's...