By John Schaffner

A lawsuit was filed earlier this month to prohibit developer Brandon Marshall from removing graves from Mt. Olive Cemetery, the last remaining vestige of the African-American community of Macedonia Park that was forced out of Buckhead in the 1940s and 1950s.

The cemetery is located along the south side of Pharr Road at the entrance to Frankie Allen Park.

Spearheaded by the Buckhead Heritage Society, the law firm of Constangy, Brooks & Smith, LLC, filed suit on Sept. 3 in Fulton County Superior Court on behalf of Elon Butts Osby, the granddaughter of William Bagley and Ida Bagley and the niece of John Bagley, all of whom are buried at Mt. Olive.

In the mid-1900s, Fulton County acquired all of the homes in Macedonia Park through coercive negotiation or eminent domain and subsequently razed the homes to make way for a public park.

The park was originally called Bagley Park after Ms. Osby’s grandfather, but the name was later changed to Frankie Allen Park. The park is well-known as the home of the Buckhead Baseball organization.

The lawsuit seeks an injunction against Marshall to prohibit him from proceeding with an

application for a burial ground disturbance permit from the city of Atlanta.

Marshall acquired the cemetery property — a 0.17-acre sliver of land adjoining Frankie Allen Park — at auction after Fulton County improperly assessed property taxes against the cemetery, which is tax-exempt. When the taxes were not paid, Fulton County placed a tax lien on the property and sold it at auction.

Marshall now is seeking permission from the city to relocate the graves.

“I think the real story is Fulton County’s role in this fiasco,” said Wright Mitchell, president of Buckhead Heritage Society. “They are to blame for this mess because they 1) never should have taxed the property, as cemeteries are tax exempt; 2) never should have placed a tax lien on the property and sold it at auction, and 3) should have purchased the property back from the developer when they realized their error.”

Mitchell also questioned what happened to the $58,000 Marshall paid for this property. “I have it on good authority that the county erroneously ‘refunded’ the money to St. Mark’s Baptist Church, which promptly spent it,” he stated.

“Mt. Olive Cemetery is the last remnant that this community was there,” said Christine McCuley, executive director of the Buckhead Heritage Society. “They helped build Buckhead. We don’t want to lose this last piece of history.”

The society actually came together over the preservation of another small forgotten Buckhead cemetery, named Harmony Grove, which was hidden by overgrown vegetation at the corner of West Paces Ferry and Chatham roads near the Cherokee Town Club. The organization has grown to 400 people in the past nine months to fund sponsorships averaging $130.

“Buckhead Heritage is working to protect Mt. Olive Cemetery, and once the land ownership issues are settled we would like to mentor a group who is interested in maintaining and restoring the cemetery,” said McCauley. “Our Harmony Grove restoration project has taught us that sacred and historic places like these add value to a community by providing a tangible link to our past and by protecting greenspace and tree canopy in an otherwise dense and urban area.”

The lawsuit spearheaded by the society also seeks a declaratory judgment finding that the city of Atlanta ordinance, under which Marshall seeks the permit, and the corresponding state statute do not apply to public cemeteries. Current laws do not distinguish between private cemeteries, which can be moved upon the satisfaction of certain criteria, and public cemeteries, which cannot be disturbed under any circumstances.

In terms of the lawsuit, Mitchell said, “It is clear under Georgia law that public cemeteries, such as Mt. Olive, cannot be appropriated for any purpose other than to be used as public burial grounds. Continuing to put Ms. Osby and the other descendants through the anguish of multiple hearings before the Atlanta Urban Design Commission and the Atlanta City Council is unconscionable,” he added. “At the end of the day, this cemetery simply cannot be moved and that is why we filed the lawsuit.”

Mitchell is a member of the Constangy, Brooks & Smith law firm, which is donating its services pro bono to this case.

An injunctive relief hearing took place before the Judge Kimberly Esmond Adams on Sept. 8th, but no decision had been handed down by Sept. 16th. (For an update, go to