JWB Real Estate Capital, LLC v. City of Jacksonville Beach
Filing
51
ORDER denying 40 Defendant's Motion to Sever Parties, for More Definite Statement, or In the Alternative, to Dismiss Plaintiffs' Second Amended Complaint. Defendant's answer is due by 4/10/19. The 50 Joint Motion to Amend Case Management Order and Case Schedule is granted; the Court will enter an amended CMSO separately. Signed by Judge Timothy J. Corrigan on 3/20/2019. (SEJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JWB REAL ESTATE CAPITAL,
LLC, a Florida Limited Liability
Company, et al.,
Plaintiffs,
v.
Case No. 3:17-cv-960-J-32PDB
CITY OF JACKSONVILLE BEACH,
a municipal Corporation of the State
of Florida,
Defendant.
ORDER
This real estate dispute is before the Court on Defendant City of
Jacksonville Beach’s Motion to Sever Parties, for More Definite Statement, or
In the Alternative, to Dismiss Plaintiffs’ Second Amended Complaint (Doc. 40),
to which Plaintiffs JWB Real Estate Capital, LLC, Hoose Homes and
Investments, LLC, and BCEL 5, LLC filed a response (Doc. 42). Defendant filed
a reply (Doc. 45), and Plaintiffs filed a sur-reply (Doc. 48). Also pending before
the Court is the Joint Motion to Amend Case Management Order and Case
Schedule. (Doc. 50).
Plaintiffs own four parcels in the City of Jacksonville Beach and wish to
develop
townhouses
thereon.
Defendant’s
Planning
and
Development
Department (“PDD”) processes and approves development plan applications
under Section 34-251 of the Land Development Code (“LDC”) (Doc. 40-1). On
August 1, 2018, the Court held a hearing on Defendant’s Motion to Sever
Parties, and For More Definite Statement, Or In the Alternative, to Dismiss
Plaintiffs’ Amended Complaint (Doc. 17), at which it addressed similar issues
raised in Defendant’s instant motion, the record of which is incorporated herein
(Doc. 27). Following oral argument, the Court abated the case pending
Plaintiffs’ efforts to render the case ripe for review. (Doc. 28).
On November 1, 2018, Plaintiffs filed the Second Amended Complaint
(“SAC”) (Doc. 33), which they argue contains allegations sufficient to withstand
Defendant’s renewed Motion to Sever Parties, for More Definite Statement, or
In the Alternative, to Dismiss Plaintiffs’ Second Amended Complaint (Doc. 40).
Plaintiffs allege that Defendant refuses to process and/or approve their
applications to develop townhouses in the City of Jacksonville Beach, and assert
claims for Equal Protection, 42 U.S.C. § 1983, Const. Amend. XIV (Count I) and
Declaratory Judgment under Chapter 86, Fla. Stat. (Count II). (Doc. 33 ¶¶ 24598, 299-330). Further, they allege that Defendant’s position that driveways
constitute “parking areas” and walkways, porches, and patios constitute
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“accessory uses” under the LDC is sufficiently final so as to make this action
ripe. (Id. ¶¶ 112-13).
After Plaintiffs submitted their applications for approval to develop
townhouses to Defendant, Heather Ireland, senior planner for Defendant,
allegedly informed them at preapplication meetings that they would need to get
variances for their developments because under the LDC, parking areas and
accessory structures must be more than five feet from internal property lines,
and some of the driveways and walkways Plaintiffs proposed were within five
feet. (Id. ¶¶ 66-67, 71). William Mann, Planning and Development Director for
Defendant, reiterated this requirement in subsequent meetings with Plaintiffs,
stating that variances were needed before Defendant would process their
applications. (Id.). The LDC gives the Board of Adjustment (“BOA”) the
authority to approve, approve with conditions, or deny variance requests. (Doc.
40 at 6-7). Plaintiffs allege that Mann informed them that the proposed
developments do not meet the applicable LDC standards for variances for
reductions in setbacks, he would not recommend approval of variance requests,
and he believed the BOA should deny any variance applications for a reduction
in setbacks that Plaintiffs might submit. (Doc. 33 ¶¶ 77-78). Specifically,
Plaintiffs allege that “Mann does not believe the developments proposed in the
Applications meet the hardship requirement for a variance under the LDC.” (Id.
¶ 79). Alternatively, Mann suggested that Plaintiffs submit revised applications
3
for development plans of condominiums or apartments because they do not have
internal property lines and would thus avoid the need for variances. (Id. ¶ 84).
Under these circumstances, Plaintiffs allege that pursuit of variances for their
proposed townhouse developments is “futile.” (Id. ¶ 80).
However, following the August 1, 2018 hearing and in an effort to make
the case ripe, Plaintiffs allege that between August 2-10, 2018, they requested
interpretations of the relevant LDC provisions governing parking area and
walkway/patio setback standards for accessory uses from Mann. (Id. ¶¶ 10407). On August 24, 2018, Mann provided his interpretation that driveways must
comply with the five-foot setback from property lines required for parking areas
and walkways/patios must comply with the five-foot setback from property lines
required for accessory uses.
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(Id. ¶ 108). Plaintiffs appealed Mann’s
interpretation to the BOA on August 27, 2018. (Id. ¶ 109). The BOA heard the
appeal on October 2, 2018 and upheld Mann’s interpretation. (Id. ¶ 111). As a
At the August 1, 2018 hearing, the Court permitted Plaintiffs to add
allegations concerning Application 4 to the SAC. Plaintiffs had previously
requested an interpretation from Mann regarding Application 4 in March 2018
(Doc. 33 ¶¶ 98-99). His interpretation in March 2018 was the same as the one
he gave Plaintiffs in August 2018. Plaintiffs appealed his earlier interpretation
to the BOA, which affirmed it. (Id. ¶¶ 100-01). Plaintiffs tried to appeal the
BOA’s ruling to the Planning Commission but Mann said they could not do so
because the application had not been “denied,” rather it had been “disapproved.”
(Id. ¶ 102).
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4
result, before Plaintiffs can submit a development application, they must first
seek and receive a variance.
Now, Defendant requests that the Court dismiss the SAC, arguing that
the case is still not ripe. (Doc. 40 at 14). Despite Plaintiffs having obtained an
interpretation from Mann which was affirmed by the BOA, Defendant contends
that the true issue remains “whether the final decision-maker has reached
determinations applying the LDC to Plaintiffs’ desired developments.” (Id. at
15). Defendant argues that getting Mann’s interpretation of whether Plaintiffs
would need to seek variances was only one of many steps in the development
plan process. Had the BOA overruled Mann’s interpretation, Plaintiffs would
not have needed to seek variances and could have submitted their development
plan applications. However, it did not, and Defendant argues that the next step
for Plaintiffs is to apply to the BOA for variances.2 (Doc. 40 at 6). Because the
BOA—not Mann—is the final decisionmaker regarding variance requests,
Defendant asserts that Plaintiffs’ argument that a variance application would
be futile because Mann said he would not recommend approval lacks merit.
(Doc. 40 at 10 n.9). Moreover, as Plaintiffs have not alleged that they applied
While neither Mann nor the Planning Commission are authorized to
grant variances, notably, as the Planning Development Department director,
Mann may recommend, and the BOA may impose, such conditions on variances
as are necessary to accomplish the goals of the LDC. (Doc. 40 at 7).
2
5
for and were denied variances, Defendant contends that is “speculative to
presume the BOA would reject any such request.” (Doc. 40 at 17).
While cases within the Eleventh Circuit support the proposition that a
plaintiff in like situations must seek variances before a case becomes ripe, 3
Plaintiffs contend that in relying on that body of law, Defendant has missed the
point. Instead, Plaintiffs argue that the “‘final decision’ at-issue is whether
[they] must apply for and receive variances, not whether [they] meet the
requirements for variances.”4 (Doc. 42 at 9). Specifically, Plaintiffs allege in
their equal protection count:
Defendant has applied additional hurdles to
Plaintiffs—receipt of variances for walkways, porches
and driveways—that it has not applied to similar
Townhouse developments.
...
See, e.g., Coles v. City of Jacksonville, No. 3:15-CV-1521-J-34PDB, 2017
WL 6059661, at *14 (M.D. Fla. Dec. 7, 2017), reconsideration denied, No. 3:15CV-1521-J-34PDB, 2018 WL 1605839 (M.D. Fla. Apr. 3, 2018) (“because he
opted out of seeking the additional distance exception, Coles denied the City an
opportunity to reach a final decision on his requested Zoning Exceptions”);
Grosscup v. Pantano, 725 F. Supp. 2d 1370, 1379 (S.D. Fla. 2010) (“where there
is no allegation that Plaintiff has ever even sought these variances, the Court
cannot find that a final decision has occurred”); Reserve, Ltd. v. Town of
Longboat Key, 933 F. Supp. 1040, 1046 (M.D. Fla. 1996) (“The plaintiffs do not
assert that they sought a variance or otherwise obtained a final decision
regarding the application to their property of Longboat Key’s 1984 and 1986
zoning decisions. Nor do they suggest that any efforts in that regard would have
been futile.”).
3
Plaintiffs also do not base their equal protection claim on a denial of
their applications (as they have not submitted applications for final approval).
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6
Defendant has violated Plaintiffs’ right to equal
protection under the law by selectively applying
accessory use/structure standards to Plaintiffs’
proposed walkways and porches while not applying the
same to other similar projects.
Defendant has violated Plaintiffs’ right to equal
protection under the law by selectively applying
parking area standards to Plaintiffs’ proposed
driveways while not applying the same to other similar
projects.
Defendant has violated Plaintiffs’ right to equal
protection under the law by requiring Plaintiffs to
apply for and receive variances where similarly
situated projects were not required to get a variance for
said items.
(Doc. 33 ¶¶ 272, 278-80).
Thus, Plaintiffs’ equal protection claim is “based upon the fact that
Defendant is requiring Plaintiffs to get variances when it did not require
comparators to get the same variances.” (Doc. 42 at 9). This distinction is subtle
but meaningful. Plaintiffs rely primarily on a Southern District of Alabama case
which—although discussed in the context of a motion to amend the complaint—
addresses similar arguments. In Bill Salter Advertising, Inc. v. City of Brewton,
Alabama, the court noted that
[t]he fatal flaw in the City’s reliance on [National
Advertising Co. v. City of Miami, 402 F.3d 1335 (11th
Cir. 2005)] is that Salter’s proposed revised pleading
would not assert First Amendment causes of action
based on denial of the May 2007 permit applications; to
the contrary, Salter would interpose due process and
equal protection claims based on the City’s manner of
processing those applications. In other words, the
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wrong alleged in the proposed Amended Complaint is
not that the May 2007 applications were denied, but is
instead that the City has imposed trumped-up
information requests and procedural requirements on
Salter, and has selectively enforced certain provisions
of its sign ordinance against Salter, all for the purpose
of delaying disposition of those applications and
discouraging Salter from proceeding.
Bill Salter Advert., Inc. v. City of Brewton, AL, No. CIV.A. 07-0081-WS-B, 2007
WL 2409819, at *3 (S.D. Ala. Aug. 23, 2007) (permitting amendment of
complaint after finding the issues sufficiently defined to satisfy the
constitutional and prudential aspects of a ripeness analysis).
Similarly, Plaintiffs do not argue that the equal protection claim stems
from denial of their applications, but from Defendant’s selective enforcement of
certain LDC provisions against them because “approving the Applications
would be politically disastrous due to Townhouses being perceived by the PDD
as unpopular with citizens who regularly speak at public hearings before the
[BOA], Planning Commission and City Council.” (Doc. 33 ¶ 266). Courts in the
Middle District of Florida have ruled that comparable cases are ripe when the
proceedings have reached an impasse, and the parties’ positions have been
defined. See Bay Area Remodelers, Inc. v. Manatee Cty., Fla., No. 8:08-CV-788T-30MAP, 2009 WL 151140, at *4 (M.D. Fla. Jan. 21, 2009) (plaintiff sufficiently
alleged that it would be futile to pursue a final decision from the County where
the County allegedly instructed plaintiff to pick up its permit packages and
8
cease further submissions);5 Open Homes Fellowship, Inc. v. Orange Cty., Fla.,
325 F. Supp. 2d 1349, 1363-64 (M.D. Fla. 2004) (holding an equal protection
claim is ripe for adjudication when the relevant proceedings have reached an
impasse and the positions have been defined, and hesitating to “put up a barrier
to litigation when it is obvious that the process down the administrative road
would be a waste of time and money.”). Here, to the extent that Plaintiffs’ equal
protection claim hinges on whether they must seek variances, as opposed to
denial of their applications for development approval, the Court concludes that
Plaintiffs have sufficiently alleged that the parties have reached an impasse,
and the case is ripe for review.
Defendant also argues that Plaintiffs failed to identify similarly situated
comparators, noting that some comparators submitted development requests at
different time periods, sought some form of variance, were projects of JWB, or
are simply too dissimilar. (Doc. 40 at 22-26). Plaintiffs contest Defendant’s
characterization of its alleged comparators, arguing that the only pertinent
issue is whether Defendant required comparators with driveways or walkways
within five feet of an internal property line to seek a variance for those
Bay Area is distinguishable in that the County told plaintiffs to cease
further submissions. Here, Defendant only rejected Plaintiffs’ applications to
the extent that it requires Plaintiffs to apply for variances to be able to submit
a complete application for review. However, Bay Area’s analysis of what is a
sufficient impasse to withstand a motion to dismiss is instructive.
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elements. (Doc. 42 at 11-20). While not prejudging the ultimate outcome of the
comparator issue, the Court finds Plaintiffs’ allegations sufficient to withstand
a motion to dismiss.
Finally, the Court stated at the August 1, 2018 hearing that it would not
be inclined to grant a motion to sever or a motion for a more definite statement.
(Doc. 37 at 53-54). On the facts alleged in the SAC, that remains the opinion of
the Court, and the motions to sever or for a more definite statement are due to
be denied.
Accordingly, it is hereby
ORDERED:
1.
Defendant City of Jacksonville Beach’s Motion to Sever Parties, for
More Definite Statement, or In the Alternative, to Dismiss Plaintiffs’ Second
Amended Complaint (Doc. 40) is DENIED.
2.
No later than April 10, 2019, Defendant must serve an answer to
the SAC.
3.
The Joint Motion to Amend Case Management Order and Case
Schedule (Doc. 50) is GRANTED.
4.
The Court will enter an amended case management scheduling
order separately.
DONE AND ORDERED in Jacksonville, Florida the 20th day of March,
2019.
10
TIMOTHY J. CORRIGAN
United States District Judge
sej
Copies:
Counsel of record
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