Daugherty v. City of East Point, Civ. A. No. C77-1953A.
| Decision Date | 07 March 1978 |
| Docket Number | Civ. A. No. C77-1953A. |
| Citation | 447 F. Supp. 290 |
| Parties | E. W. DAUGHERTY, Jr. and Robert L. Daniell, Plaintiffs, v. CITY OF EAST POINT, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Michael A. Kessler, Bates, Baum & Landey, Atlanta, Ga., for plaintiffs.
Henry Sparrow, George N. Sparrow, Jr. and E. Wayne Wallhausen, East Point, Ga., for defendant.
STATEMENT OF THE CASE
Plaintiff, E. W. Daugherty, Jr., is a real estate broker licensed by the State of Georgia, doing business in the East Point area. The plaintiff, Robert L. Daniell, is a homeowner and resident of East Point, Georgia. The City of East Point, defendant in this action, is a municipality existing under the laws of the State of Georgia.
Plaintiffs bring this action seeking an injunction to restrain the enforcement of an ordinance and a declaratory judgment as to the constitutionality of an ordinance. The ordinance under attack prohibits "For Sale" signs desired to be erected by plaintiffs upon the residential lot of plaintiff Daniell which plaintiffs desire to advertise for sale.
Evidence was heard and the case is before the Court on the prayer for a preliminary injunction.
From the evidence the Court finds the following facts:
The plaintiff Everett W. Daugherty, Jr., is a resident of East Point, Georgia and is self-employed as a real estate broker, having been engaged in business as a real estate agent and broker for approximately fourteen years.
The plaintiff, Robert L. Daniell, is a resident of East Point, Georgia and owns a home in East Point which he desires to sell because he is moving to Alaska.
Plaintiff Daugherty is not formally associated with other brokers, does not belong to any multiple listing groups and does most of his advertising of various properties for sale by newspaper, word of mouth, direct mail and with "For Sale" signs except in certain areas of East Point where "For Sale" signs are prohibited.
On one occasion in the fall of 1977 Daugherty was fined in the Municipal Court of East Point for violating the ordinance prohibiting such signs, which case is now on appeal to the Superior Court of Fulton County, Georgia.
Plaintiff Daniell desires the right to put a sign in his front yard advertising his house for sale.
The sign plaintiffs desire to erect is a standard "For Sale" sign of modest size, yellow in color with red print showing the property for sale with the name and telephone number of the agent being listed on the sign.
The city of East Point is generally racially integrated having become so in the past five years.
The ordinance in question was enacted in 1972 at a time when the neighboring areas of Cascade Heights and Campbellton were in rapid racial transition with the neighborhoods containing a sea of "For Sale" signs which distorted the law of supply and demand, severely lowering market values in those areas.
As a result of expressions of alarm as to the future of East Point the present sign ordinance was enacted in an effort to maintain stability in the neighborhood with a desire to prevent white flight being one of the motivating factors behind enactment.
At the time of enactment of the ordinance East Point was essentially an all white community and has now become integrated with a 23% black population with this having been accomplished by orderly transition.
Witnesses credit the sign ordinance with the transition of East Point from an all white neighborhood to integrated housing without mass selling. They fear that the allowing of signs as sought by plaintiffs will cause the situation as to alarm and anxiety on integration and lowering of property values to revert to that of 1972.
On or about May 15, 1972 the City of East Point, Georgia adopted the zoning ordinance applicable to its premium single family residential areas R-0, R-1, and R-2, which is now before the Court. This ordinance prohibits, within the specified zoning classifications, placement of all signs, the ordinance being as follows:
The ordinance was adopted in the interest of the public welfare of the property owners and citizens of the City of East Point, Georgia, for the purpose of protecting and maintaining the value of property and in limiting its use and improving the aesthetic values and appearances of the residential neighborhoods; to stabilize and preserve the use and value of properties within the specified zoning districts; and to benefit all of its citizens and property owners and the general welfare of the community by accomplishment of these purposes.
East Point is a "bedroom" community located in the southwesterly boundaries of the City of Atlanta, Georgia. East Point is bounded on the North by the City of Atlanta, on the West by unincorporated Fulton County, to the South by the City of College Park, Georgia and to the East by the City of Atlanta and City of Hapeville, Georgia. Prior to the adoption of the ordinance in 1972, the southwest area of the City of Atlanta had undergone radical racial transition from an area of a predominately white composition through resegregation into a segregated black residential neighborhood.
The evidence submitted based upon the best available census tract information compiled and prepared by the Atlanta Regional Commission shows that various census tracts surrounding East Point variously went through transition from as high as ninety-nine (99%) percent white composition and one (1%) percent black composition to a virtual reversal of these figures to ninety-nine (99%) percent black composition and one (1%) percent white.
The community and the citizens of East Point had witnessed and many had experienced first hand, the transition and resegregation that took place in the areas immediately adjoining East Point. There was considerable apprehension, fear and panic. existing within the residential community of East Point and, in fact, a great deal of "white flight" beginning to take place in residential areas of East Point. The evidence further established that since 1970 East Point has experienced an increase of approximately three hundred (300%) percent in the black composition of the City of East Point and that it is now, and under the existence of this ordinance, is maintaining itself as a stabilized integrated residential community.
The evidence further established that since the adoption of the ordinance the community has stabilized as a well balanced racially integrated community to the point there is, in fact, confidence in both the white and black residents of East Point in the present stability of the community as an integrated neighborhood with members of both races viewing and purchasing residential housing.
The evidence further established that the property owners of the City believe the ordinance to have been effective in stabilizing the community and its property values. Repeal might cause loss of faith in the stability of the community and a return to the panic situation that existed at the time of adoption of the ordinance.
There are other alternative methods of advertising and publishing and marketing tools available to property owners of East Point for sale of their property without the necessity of the use of signs on their property. The evidence supported plaintiff's contention that these alternative methods are not as effective as the posting of signs. In addition, plaintiff, Daugherty showed that it would be prohibitively expensive for him to join a multiple listing computer or catalogue group. All alternatives left open to the plaintiff involve more cost and may be less effective media for communicating the desired message.
There is no bad faith existing on behalf of the defendant in its application and enforcement of the ordinance and such enforcement and application is generally uniformly and consistently applied. Signs are permitted in all other zoning classification areas of the City including signs directing potential purchasers into residential areas in which houses are for sale.
Plaintiff alleges jurisdiction under 28 U.S.C. § 1331,...
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City of Chicago v. Prus, 82-1863
...(1975), 421 U.S. 809, 811, 95 S.Ct. 2222, 2227, 44 L.Ed.2d 600, 605). The trial court, relying principally on Daugherty v. City of East Point (N.D.Ga.1978), 447 F.Supp. 290, rejected plaintiff's offer of proof that Chicago suffers from instability as a result of rapid racial change in its n......
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City of Chicago v. Prus
...took place in a case in which a for-sale sign ban ordinance was held unconstitutional under Linmark. (See E. W. Daugherty v. City of East Point (N.D.Ga.1978), 447 F.Supp. 290.) We believe that Linmark and its progeny require a governmental body to show that the purported harm caused by the ......
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