Amicus Brief — Linmark Associates, Inc. v. Willingboro

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Supreme Court of the United States

October Term, 1976

No. 76-357

LINMARK ASSOCIATES, INC. AND WILLIAM

MELLMAN,

Petitioners,

vs.

THE TOWNSHIP OF WILLINGBORO AND

GERALD DALY,

Respondents.

On Writ or CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE THIRD CIRCUIT

BRIEF OF AMICI CURIAE THE CITIES OF

SHAKER HEIGHTS, OHIO, AND

CLEVELAND HEIGHTS, OHIO

—— ——

i ee —_

Pau R. DONALDSON

Director of Law, City of Shaker Heights

3400 Lee Road

Shaker Heights, Ohio 44120

(216) 752-5000

DonaLp K. BarCLay

Director of Law, City of Cleveland Heights

2953 Mayfield Road

Cleveland Heights, Ohio 44118

(216) 321-0100

Attorneys for Amici Curiae

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO-—TEL. (216) 621-5647

TABLE OF CONTENTS

I. Interest of the Amici Curiae

1. The Prohibition of Real Estate Sale Signs in

Residential Districts Is a Constitutionally Valid

Exercise of Municipal Police Power...» =>»

2. The Prohibition of Real Estate Sale Signs in

Residential Districts of Shaker Heights and

Cleveland Heights Has Strengthened Property

Values and Has Been Widely Accepted by the

Local Realty Community 22000000000000000...2c0ceeeeeee

3. The Prohibition of Real Estate Sale Signs in Resi-

dential Districts Is an Important Facet of Af-

firmative Action by Local Governments to Pro-

mote Community Integration —....

TABLE OF AUTHORITIES

Cases

Barrick wtien v. City of Gary, 491 F.2d 161 (7th Cir.

1974) _ J

Berenson v. a of ew Castle, 38 s N.Y2d 102, 378

N.Y.S.2d 672, 341 N.E.2d 236 (1975) - 7

Heights Community Congress v. Rosenblatt Realty,

No. D74-1059, P-H Equal Opp. In Housing at 14,473,

913,702 (U.S.D.C. N.D. Ohio 1975) ........000000000000...

Metropolitan Housing Dev. Corp. v. City of Arlington

Hts., 517 F.2d 409 (7th Cir. 1975), app. pending, 423

U.S. 1030 (1976) _ = os

Southern Burlington Cisne NAACP + v. ; Sean of Mt.

Laurel, 67 N.J. 151, 336 A.2d 713 (1975), cert. denied,

423 U.S. 808 (1976) . —_

Trafficante v. Metropolitan Life tes. Co, “409 US. 205

(1972) - ee ee ,

U.S. v. Mitchell, 335 F. 7 1004 (N.D. Ga. 1971) -

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)

Zuch v. Hussey, 366 F. Supp. 553 (E.D. Mich. 1975)

Texts

Alfred and Marcoux, Impact of a Community Associa-

tion on Integrated Suburban Housing Patterns, 19

Cueve. St. L. Rev. 90, 91-92 (1970) ...........0..0..........

Blank, Ludlow—A Lesson in Integration, REAper’s Dt-

ee

Marcoux, Integrated Housing, Nation’s Cities (Oct,

BED cenevuiiidhbienntarnesstecermmprineearesimmetiinintiitaiiantiontiapaianes

ow &

N.Y. Times, Oct. 18, 1975, p. 1, Integrated Housing

Ee ene

N.Y. Times, Aug. 13, 1972, Integration: One Way to

Re

R. ANDERSON, AMERICAN LAW oFr ZONING 2d, §§7.16,

| Lee

Supreme Court of the United States

October Term, 1976

No. 76-357

LINMARK ASSOCIATES, INC. AND WILLIAM

MELLMAN,

Petitioners,

vs.

THE TOWNSHIP OF WILLINGBORO AND

GERALD DALY,

Respondents.

On Writ or CERTIORARI TO THE UNITED STATES

Court or APPEALS FoR THE THIRD CIRCUIT

BRIEF OF AMICI CURIAE THE CITIES OF

SHAKER HEIGHTS, OHIO, AND

CLEVELAND HEIGHTS, OHIO

I.

INTEREST OF THE AMICI CURIAE*

The cities of Shaker Heights and Cleveland Heights

are chartered municipal corporations of the State of Ohio.

2

Cleveland Heights is north of and adjacent to Shaker

Heights, and both cities border upon the east side of the

City of Cleveland. Both Shaker Heights and Cleveland

Heights prohibit the posting of “for sale”, “sold”, and other

signs relating to the sale of real estate in residential dis-

tricts, by means of zoning provisions much like the chal-

lenged zoning ordinance of Respondent Township of

Willingboro.

The interest of Shaker Heights and Cleveland Heights

in this case is predicated upon the important concerns of

public peace, safety, and welfare stemming from the pro-

hibition of outdoor advertising in residential areas and

from the stability in the integrated communities of Shaker

Heights and Cleveland Heights engendered to a great de-

gree by zoning provisions like the one at issue. Further,

the prohibition of signs pertaining to the sale of realty in

residential areas is a vital part of comprehensive programs

in Shaker Heights and Cleveland Heights to foster stabi-

lized housing integration by combatting the psychology of

fear and the promotion of panic selling of homes spawned

to a large degree by realty sale signs.

Amici curiae respectfully submit that this Court must

uphold the decision below of the Third Cireuit Court of

Appeals, which found constitutional the Willingboro zoning

ordinance at issue. A reversal of that decision would have

the serious effect of eroding the police powers of all

American municipalities over local zoning policy. <A

reversal would also strike a crippling blow to the signifi-

cant, successful inroads that Shaker Heights and Cleveland

Heights have made toward coping with rapid community

racial change and in fostering truly integrated commu-

nities.

3

Il.

PRELIMINARY REMARKS

The zoning ordinances prohibiting signs pertaining to

the sale of realty in residential districts have existed in

Shaker Heights since April, 1964, and in Cleveland Heights

since December, 1967. The Shaker Heights provision was

one of the first of its kind in the United States. These

zoning provisions primarily stemmed from the disruption

to community peace, safety, and welfare in the early 1960’s

which resulted from the unfounded, irrational fears of resi-

dents and the panic selling of homes due to the rapid influx

of black families from the City of Cleveland into Shaker

Heights and Cleveland Heights.

Prior to enacting zoning ordinances prohibiting resi-

dential real estate signs, both Shaker Heights and Cleve-

land Heights made careful studies of the situation pre-

sented by such signs. The realty sale signs were found

to be aesthetically displeasing and a burdensome imposi-

tion of commercialism into residential areas. The signs

were also found to be an effective “tool” for certain real

estate brokers to use in applying pressure to homeowners

to sell their homes in the face of artificial, fear-imposed,

“eroding” property values—the sad phenomenon of “block-

busting”. For instance, in the early 1960’s on a certain

street in Shaker Heights, the arrival of the first black

family on the street was “greeted” by a dozen “for sale”

signs out of a total of about fifty homes on the street. This

scene was repeated on many other streets. Such a use of

realty sale signs breeds a psychology of fear.

The realty sale signs were employed by certain real

estate brokers and other individuals in Shaker Heights and

Cleveland Heights without consideration of the effect the

signs would have on the delicate process of neighborhood

4

integration. A feeling of negativity is bred by the sight of

a neighborhood sprouting such signs. The negative feelings

readily develop into panic among homeowners who don’t

want to leave the neighborhood, but are pressured into it

by unscrupulous realtors and other individuals who have

no concern for the welfare of the community, who point

out the signs and force-feed white homeowners unfounded

fears of eroding property values resulting from each new

black family.

Ill.

ARGUMENT

1. The prohibition of real estate sale signs in resi-

dential districts is a constitutionally valid exercise

of municipal police power.

Real estate sale signs are basically outdoor advertising.

The zoning ordinances of local governments to regulate

outdoor advertising have long been recognized as constitu-

tional exercises of the local police power to advance public

health, safety, morals, and welfare. See, e.g., R. ANDERSON,

AMERICAN LAW oF ZontnG 2d, §§$7.16, 15.82, 15.83 (1976),

and cases cited therein.

Both Shaker Heights and Cleveland Heights do not

limit their outdoor advertising restrictions merely to realty

sale signs. All forms of outdoor business advertising are

prohibited in residential districts under the zoning codes

of both cities.

Regulations which exclude signs from residential dis-

tricts have been upheld as constitutionally valid protection

of public interests, which interests have been found as

more than local aesthetics. R. ANDERSON, supra, at §15.83.

In this case, the primary public interests to be advanced

5

by the prohibition of real estate sale signs are the preserva-

tion of property values, and the promotion of stabilized

community integration as well as the benefits to all which

stem from living in a heterogenous racial environment—a

hope to many in the United States, but very much a reality

in Shaker Heights and Cleveland Heights.

An ordinance regulating the usage of signs such as the

one in issue is a constitutional exercise of local police

powers over zoning. Such an enactment is consistent with

sound zoning practices regulating commercial invasions

into residential peace and privacy. “The police power is

not confined to elimination of filth, stench and unhealthy

places. It is ample to lay out zones where family values,

youth values, and the blessings of quiet seclusion and clean

air make the area a sanctuary for people.” Village of Belle

Terre v. Boraas, 416 U.S. 1, 9 (1974).

2. The prohibition of real estate sale signs in resi-

dential districts of Shaker Heights and Cleveland

Heights has strengthened property values and has

been widely accepted by the local realty com-

munity.

Petitioners Linmark Associates, Inc. and William

Mellman argue that the only remedy a local government

has to combat racially-motivated panic selling is by edu-

cating the citizenry, not by restricting outdoor realty ad-

vertising. Petitioners’ Brief, at 17. It has been the ex-

perience of Shaker Heights and Cleveland Heights that

much more than education is necessary to cure the effects

of generations of segregation and discrimination. An ex-

tensive program of educating the community that racial

fears were unfounded was attempted with only limited

success in Shaker Heights before the City took the neces-

sary step in 1964 of prohibiting “for sale’ signs. See

6

Alfred and Marcoux, Impact of a Community Association

on Integrated Suburban Housing Patterns, 19 Cieve. Sr. L.

Rev. 90, 91-92 (1970).

It is significant that for almost thirteen years in

Shaker Heights, and for nine years in Cleveland Heights,

no realtors or other persons have challenged the cities’

realty sign prohibition ordinances. Initial opposition was

voiced to the enactment of the zoning provisions, but it

did not last for long. It has been the experience of both

cities that realtors have come to embrace the prohibition,

and have readily cooperated with it.

The prohibition of realty signs has been a major factor

in promoting a meaningful process of community integra-

tion in Shaker Heights and Cleveland Heights while help-

ing to reduce the flight of white families to other commu-

nities. The realty sign ordinances are not, however, tied

into racial “steering”. Shaker Heights nor Cleveland

Heights do not prohibit or limit other means of listing

homes for sale, such as by media advertisements, realtor

listing pools, or any other means. The realty community

has come to appreciate the value of the real estate sale sign

prohibition, for it has greatly helped to strengthen the real

estate market in Shaker Heights and Cleveland Heights by

preserving and stabilizing property values.

3. The prohibition of real estate sale signs in resi-

dential districts is an important facet of affirma-

tive action by local governments to promote com-

munity integration.

The prohibition of real estate sale signs in residential

districts is one facet of ongoing, extensive programs in

Shaker Heights and Cleveland Heights to induce real

estate brokers to renew their dwindling efforts in the inte-

grated communities; to effect increased demand by white

7

families for housing in integrated areas; to foster a closer

working relationship between realtors and neighborhood

associations; and, above all, to insure stabilized integration

in Shaker Heights and Cleveland Heights.

Both cities have agencies to work toward achieving the

above objectives, the Shaker Heights Housing Office and

the Cleveland Heights Community Congress. The opera-

tions and success of these agencies are well documented.

See, e.g., Integrated Housing Thrives in Suburb, N.Y.

Times, Oct. 18, 1975, p. 1; Heights Community Congress

v. Rosenblatt Realty, No. D74-1059, P-H Equal Opp. in

Housing at 14,473, 13,702 (U.S.D.C. N.D. Ohio 1975);

Blank, Ludlow—A Lesson in Integration, READER’s D1GEsT,

(Sept., 1968); Mareoux, Integrated Housing, NATION’s

Crries (Oct., 1973); Integration: One Way to Avoid

Busing, N.Y. Times, Aug. 13, 1972. Other means taken by

Shaker Heights and Cleveland Heights to effect stabilized

integration are real estate review committees consisting

of municipal officials, realtors, and members of the com-

munity, as well as ordinances prohibiting “blockbusting”’

and racial “steering”.

The dissenting opinion of Circuit Judge Gibbons in the

decision below (535 F.2d 786, 805-816) contends that the in-

tended purpose of the Willingboro realty sign prohibition

ordinance is one of discrimination against racial minorities.

His analysis implies that governmental action to stabilize

community integration is unconstitutional, because such

stabilization activity somehow bars minorities from a com-

munity and thus creates a discriminatory impact.

However, ordinances such as the one in issue are in-

tended to promote and stabilize integration, not defeat it.

The goal of our national housing policy is to “replace the

ghettos” with truly integrated and balanced living patterns

for all races. Trafficante v. Metropolitan Life Ins. Co.,

8

409 U.S. 205 (1972). Proper provision for adequate hous-

ing of all races is absolutely essential in the promotion of

the general welfare of a community. A municipality has

an affirmative obligation to meet the needs and desires of

all people who desire to live in a community. Southern

Burlington County NAACP v. Town of Mt. Laurel, 67 N_J.

151, 336 A.2d 713 (1975), cert. denied, 423 U.S. 808 (1976);

Berenson v. Town of New Castle, 38 N.Y.2d 102, 378 N.Y.S.

2d 672, 341 N.E.2d 236 (1975). A municipality must take

the responsibility of insuring that a segregated housing pat-

tern does not develop in the community. See Metropolitan

Housing Dev. Corp. v. City of Arlington Hts., 517 F.2d 409

(7th Cir. 1975), app. pending, 423 U.S. 1030 (1976).

The real estate sale sign prohibition’ ordinances of

Willingboro, Shaker Heights, and Cleveland Heights are

primarily designed to counteract the evil effect upon a

community promulgated by realtors through racial steer-

ing, blockbusting, and panic selling. See Zuch v. Hussey,

366 F. Supp. 553 (E.D. Mich. 1975). Such an ordinance

prevents unscrupulous realtors and other individuals who

have no concern for the welfare of the community from

preying upon the fears of property owners in racially

transitional areas and thereby inducing the kind of panic

selling which results in community instability and decline.

See U.S. v. Mitchell, 335 F. Supp. 1004 (N.D. Ga. 1971).

The promotion of orderly integration by the use of the

zoning ordinance at issue may well be said to rise to the

level of a compelling governmental interest, which super-

~ @edes any rights that realtors, independent home sellers,

prospective home buyers, or any other individual may

have relative to the posting of “for sale” or “sold” signs in

front of homes. The Township of Willingboro and the

cities of Shaker Heights and Cleveland Heights have acted

to balance individual and collective interests to insure

9

open, integrated communities. The interest of black and

white citizens in stable communities outweighs any minor

inconvenience to personal interests. Barrick Realty v. City

of Gary, 491 F.2d 161 (7th Cir. 1974).

Iv.

CONCLUSION

We submit that much more than governmental restric-

tions upon commercial real estate marketing methods is at

issue in this case. At stake are the entire police power of

local governments over local zoning policy and the vital

function of local governments to regulate and effect fair

housing practices and stabilized integration in order to pre-

vent “ghettoization” and ensuing community deterioration

and blight. A reversal of the decision below would effec-

tively curtail the power of a community over its develop-

ment and destiny. Therefore, amici curiae City of Shaker

Heights and City of Cleveland Heights respectfully request

the Court to uphold the ordinance of the Township of

Willingboro in issue and to affirm the decision below of

the Third Circuit Court of Appeals.

Respectfully submitted,

Paut R. DoNALDSON

Director of Law, City of Shaker Heights

DonaLp K. BaRcLay

Director of Law, City of Cleveland

Heights

Attorneys for Amici Curiae