Kennedy v. Avondale Estates, Georgia

• Decision Date: 31 March 2005
• Docket Number: No. CIV.A. 1:00-CV-1847.,CIV.A. 1:00-CV-1847.
• Citation: 414 F.Supp.2d 1184
• Parties: Katharine KENNEDY, Daniel Waggoner, and Anne Keating Plaintiffs, v. AVONDALE ESTATES, GEORGIA, a Municipal Corporation, John Parker, in his official capacity as City Manager and Police Chief of Avondale Estates, Lyda Steadman, in her official capacity as City Clerk-Treasurer of Avondale Estates, and Craig A. Mims, in his official capacity as Code Enforcement Officer of Avondale Estates Defendants.
• Court: U.S. District Court — Northern District of Georgia

414 F.Supp.2d 1184

Katharine KENNEDY, Daniel Waggoner, and Anne Keating Plaintiffs, v. AVONDALE ESTATES, GEORGIA, a Municipal Corporation, John Parker, in his official capacity as City Manager and Police Chief of Avondale Estates, Lyda Steadman, in her official capacity as City Clerk-Treasurer of Avondale Estates, and Craig A. Mims, in his official capacity as Code Enforcement Officer of Avondale Estates Defendants.

No. CIV.A. 1:00-CV-1847.

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

March 31, 2005.

COPYRIGHT MATERIAL OMITTED

Cristina Correia, Cristina Correia, L.L.C., Avondale Estates, GA, Marcia Weil Borowski, Thompson Rollins Schwartz & Borowski, Decatur, GA, Moffatt Laughlin McDonald, Neil T. Bradley, Elizabeth Lynn Littrell, Gerald R. Weber, American Civil Liberties Union Foundation of Georgia, Inc., Atlanta, GA, for Plaintiffs.

Ernest Ronald Bennett, Jr., Richard A. Carothers, William McLane Coolidge, III, Carothers & Mitchell, LLC, Buford, GA, for Defendants.

ORDER

CARNES, District Judge.

                TABLE OF CONTENTS
                

                BACKGROUND................................................................... 1188
                     I.  Factual Background.................................................. 1188
                         A.  A History of Amendments......................................... 1188
                         B.  Key Provisions of the Current Ordinance......................... 1190
                         C.  The Parties..................................................... 1195
                    II.  Procedural History.................................................. 1195
                DISCUSSION................................................................... 1196
                     I.  Individuals Sued in their Official Capacity......................... 1196
                    II.  Federal Constitutional Standards for Regulating Speech.............. 1196
                         A.  Content-Based vs. Content-Neutral............................... 1196
                         B.  Are All Sign Regulations Necessarily Content-Based?............. 1198
                         C.  Commercial Speech............................................... 1198
                   III.  Standing............................................................ 1199
                    IV.  Challenged Provisions of the Avondale Estate's Ordinance............ 1200
                         A.  Provisions of the Ordinance Directed at Commercial Speech....... 1200
                             1.  Real Estate Signs........................................... 1200
                             2.  Yard Sale Signs............................................. 1202
                         B.  Provisions of the Ordinance Directed at Noncommercial Speech.... 1204
                             1.  General Size, Height, Number, and Setback Restrictions
                                   Are Content-Neutral....................................... 1204
                                 a.  Height, Size, and Number Restrictions................... 1205
                                 b.  Setback Provision....................................... 1208
                             2.  Exemption of Seasonal Displays and Decorations.............. 1209
                                 a.  Seasonal Display Exemption.............................. 1209
                             3.  Flags....................................................... 1211
                             4.  Grandfathering Provision.................................... 1213
                     V.  Analysis Under the Georgia Constitution............................. 1216
                    VI.  Voting Rights Act................................................... 1216
                   VII.  Equal Protection Claims............................................. 1218
                  VIII.  Severability of Unconstitutional Provisions......................... 1219
                CONCLUSION................................................................... 1220
                

Established as a planned community in the 1920's¹ and placed on the National Register of Historic Places in 1986, Avondale Estates is a small municipality just outside the City of Atlanta. For decades, Avondale Estates [hereinafter "Avondale"] has been known for its well-tended lawns, its Tudor-style buildings, its lake, and its lasting charm as a village-type community surrounded by a large bustling metropolis. Avondale is also known for its rules and regulations. The City Fathers apparently believe that it is no accident that Avondale has maintained its aesthetic appeal at a time when many other older middle-class neighborhoods have not; instead, they contend that it is their hands-on monitoring of the neighborhood that has helped insure its preservation. The plaintiffs, who are residents of Avondale, however, chafe under these rules and what they perceive as Avondale's badge-heavy enforcement. Represented by the ACLU in this litigation, the plaintiffs specifically challenge Avondale's Sign Ordinance as being in violation of the First Amendment and Equal Protection Clause of the United States Constitution. The case is now before this Court on both parties' motions for summary judgment, each of which the Court concludes should be GRANTED in part and DENIED in part.

BACKGROUND

Plaintiff and defendant have filed crossmotions for summary judgment. Unless otherwise indicated, the Court draws the facts of this case from Plaintiffs' Statement of Material Facts Not in Dispute [71] ("PSMF"), Defendants' Response to Plaintiffs' "Fourth" Motion for Summary Judgment and Brief in Support of Defendants' Cross-Motion for Summary Judgment [73] ("Defs.' Resp."), Defendants' Statement of Undisputed Facts [74] ("DSUF"), and Plaintiffs' Response to Defendants' Statement of Undisputed Facts [76] ("Pls.' Resp.").

I. Factual Background

A. A History of Amendments

As noted, the City of Avondale Estates, is a small municipality located approximately ten miles from downtown Atlanta. At least one square mile of the city's one and a quarter square miles consists of residential structures, most of which are single family homes. There are approximately 1,200 single family homes in the City. (Defs.' Resp. at 2.) On September 11, 1967, defendant adopted an ordinance prohibiting all signs except "street number and/or resident's name" in "any area of the city zoned for residential use." (PSMF at ¶ 1.) At the time this action was filed in July of 2000, defendant had continued to ban all signs in residential areas except house numbers, historic markers, original house designations, and street identification numbers. (PSMF at ¶ 2.) Since the start of this litigation, and likely in response to it, defendant has amended its sign ordinance five times. These amendments were adopted on November 8, 2000, November 26, 2001, November 25, 2002, September 22, 2003, and March 23, 2004.

On November 8, 2000, after a partial moratorium on enforcement of the ordinance, defendant repealed portions of the ordinance that, among other things, outright prohibited the display of noncommercial signs and limited the display of flags. (PSMF at ¶ 5; Sign Ordinance, attach. as Ex. A to Defs.' Resp. to Pls.' Summ. J. Mot. [12].) On November 26, 2001, defendant adopted a new sign ordinance. This new ordinance allowed one real estate sign, one yard sale sign, and signs containing "noncommercial messages." The ordinance limited each residence to three signs with each sign being no higher than three feet and no larger than four square feet in size. Historic markers were permitted to be up to seven feet high and twelve and a half square feet in size. Both sides of a double faced sign counted toward the four foot limit, and yard sale signs were limited to half the size of all other signs and restricted to the day of sale. (PSMF at ¶ 6.) In the November 2001 ordinance, real estate signs were permitted to contain the words "for sale," "for lease," or "for rent," along with the name of the owner or owner's agent and a telephone contact number. Real estate signs, however, were not permitted to display the corporate logo or emblem of the agency advertising the property, or any other commercial message unrelated to the property itself. (Sign Ordinance, attach. as Ex. A to Pls.' Mot. for Summ. J. and Statement of Material Facts Not in Dispute [42].) Seasonal displays, and noncommercial announcements, of occasions such as birthdays and anniversaries were also exempt from the ordinance. (PSMF at ¶ 6.) In addition to removing any non-compliant sign, the code enforcement officer and other city personnel were authorized to issue citations for any violation of the ordinance. Any such citation was to be taken to the municipal court of the City of Avondale Estates and prosecuted as any, other criminal citation would be in the municipal court. (Sign Ordinance, attach. as Ex. A to Pls.' Mot. for Summ. J. and Statement of Material Facts Not in Dispute [42].)

On November 25, 2002, defendant amended its ordinance for a third time. This version of the sign ordinance repealed the three sign limit, and replaced it with a four square feet per sign, twelve square feet per lot limit. Both sides of a two faced sign no longer counted toward the size limit, and the express exemption for historic markers was eliminated. (PSMF at ¶ 7.) The ordinance devoted an entire section, § 5-376, to the display of flags. (Sign Ordinance, attach. as Ex. A to Defs.' Mot. to Amend Answer [48].) The flag section imposed proportionality requirements that required a fifteen foot "professionally fabricated flagpole" to display a 3x5 foot flag. This section also required that all flags displaying a "logo, message, statement, or commercial message" conform to all the other sign regulations contained in the ordinance. (PSMF at ¶ 7.) The November 2002 ordinance also articulated more specific criminal penalties for violations of the ordinance. Whereas earlier versions of the ordinance only provided for the issuance of citations to be taken to the municipal court of the City and prosecuted as any other criminal citation, version three of the ordinance specified that the maximum punishment for violation of the ordinance was a fine of $1,000 or six months imprisonment or both. (Sign Ordinance, attach. as Ex. A to Defs.' Mot. to Amend Answer [48].)

Defendants' fourth...