River Cross Land Company, LLC v. Seminole County
ORDER granting 34 Seminole County's Motion in Limine to Exclude the Opinions and Expert Testimony of Dr. Charles Cowan; granting 35 Seminole County's Motion for Summary Judgment; denying 36 River Cross Land Company, LLC's Motion for Partial Summary Judgment; denying as moot 44 Seminole County's Motion in Limine. Signed by Judge Anne C. Conway on 6/4/2021. (EC1)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
RIVER CROSS LAND
Case No: 6:18-cv-1646-ACC-LRH
This cause comes before the Court on Seminole County’s Motions for
Summary Judgment (Doc. 35) and to Exclude the Opinions and Expert Testimony
of Dr. Charles Cowan (Doc. 34), as well as Plaintiff River Cross Land Company,
LLC’s (“River Cross”) Motion for Partial Summary Judgment (Doc. 36). The parties
have filed Responses (Docs. 41, 42, 43) and Replies (Docs. 45, 48) to the respective
Motions. The Motions are ripe for review.
The timing, the litigants, and the type and location of development proposed
in this case are very rarely present in a Fair Housing Act claim. River Cross, as a
non-minority commercial developer, is not the traditional tenant or non-profit
plaintiff committed to integrating the housing available in a historically segregated
community. The vast majority of the development proposed by River Cross in this
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case is commercial and, if approved, would comprise some of the only large
commercial and multi-family development built in the rural section of Seminole
County, which is inhabited by a tiny sliver of the County’s half a million residents.
The River Cross proposal to develop affordable housing in such a rural area
is also highly unusual. The proposed site currently has no infrastructure: no roads,
no bridge, no public transportation, no potable water or sewer utilities, and no
expansion of such infrastructure is planned by the County. The land is surrounded
by a significant river basin area, a wilderness preserve, rural agricultural lands, and
more than forty percent of the proposed site consists of wetlands. Affordable housing
tax credits are awarded to developers for units in areas with public transportation
and employment opportunities for the low-income tenants.
River Cross decided to add the “affordable housing” provision to its
application at the last minute, just two days before the County Commission meeting
and after it became clear that County staff and the zoning commission would
recommend denial of the River Cross application. During the County Commission
meeting, although River Cross represented that it intended to develop what it
characterized as one of “the best premier communities” in Seminole County, River
Cross disingenuously used the threat of a lawsuit under the federal Fair Housing Act1
At the public hearing, River Cross raised the specter of litigation under the federal Fair
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as the fulcrum to urge County Commissioners to approve the entire River Cross
proposal for 1.5 million square feet of commercial space and 1370 densely-grouped
Since 1991, in order to avoid “urban sprawl,” Seminole County’s urban-rural
boundary line has restricted development of commercial projects like the River
Cross proposal to the western two-thirds of the County where there is sufficient
infrastructure and vacant land. Undeveloped land in the County to the east of the
Econlockhatchee River Basin lacks the adequate infrastructure to support
commercial and dense residential developments, and is comprised primarily of
parks, conservation area, agricultural land, and timberland. Single-family residences
on five- and ten-acre lots—completely dependent on well-water and septic tanks—
constitute the other fifth of the rural area. At the time the County considered the
River Cross proposal in 2018, a significant amount of land in the urban area was
vacant and still available for development of commercial and multi-family projects,
with the concomitant infrastructure already in place. Seminole County has more than
5,000 affordable housing units located in this urban area close to transportation and
Housing Act unless the County was willing to “move the rural boundary” to accommodate the
entire River Cross proposal and “bring the rural boundary into greater compliance with the
federal Fair Housing Act.” (Doc. 35-2 at 91-92).
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During the Board of County Commissioners meeting, County staff and urbanplanning consultants explained that, without River Cross providing adequate and
accurate plans for expanding infrastructure requirements for higher-density water
and wastewater services, transportation, and protection of the natural resources
abundant in the rural area, they recommended that the River Cross application be
denied as incomplete. At the end of the four-hour meeting, the Chair of the County
Commission summed things up: the boundary line has “nothing to do with the rural
area. It has everything to do with the urban area because the [County’s] policy is to
develop those particular areas of the urban area before developers would go to the
cheaper land in the rural area. ... . [A]nd the rural boundary has more to do with all
of the county, [not] with just the eastern rural areas.” 2 The Board of County
Commissioners followed the staff recommendation and denied the River Cross
proposal. Shortly thereafter, River Cross sued the County under the Fair Housing
River Cross asserts a single claim against Seminole County under the Fair
Housing Act, alleging that the boundary line “perpetuates a segregative effect.”
Unsurprisingly, River Cross lacks standing to sue because it has not shown that the
75 units of “affordable” or income-based housing would serve minority residents.
(Doc. 35-2 at 329).
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River Cross has also failed to produce any evidence that the County’s denial of the
proposal significantly perpetuates or reinforces segregation, which is also fatal to its
claim. Moreover, even if River Cross had significant evidence that the boundary line
caused a segregative effect, the County has shown it had legitimate, nondiscriminatory reasons for denial of the River Cross proposal based on its desire to
avoid “urban sprawl” under the governing Florida community planning statutes, and
River Cross has failed to propose a less-discriminatory alternative.
For the reasons set forth in detail below, Seminole County’s Motions to
Exclude the Expert Opinions of Dr. Charles Cowan and for Summary Judgment will
be granted and River Cross’ Motion for Partial Summary Judgment will be denied.
A. Brief Introductory Background
In 2018, Plaintiff River Cross Land Company, LLC,3 a non-minority private
developer, proposed a plan to convert approximately 670 acres of real property in
the undeveloped, rural area of Seminole County, adjacent to the Econlockhatchee
River4 Basin, into a large commercial and residential development which would be
River Cross Land Company, LLC has three active members: the “sole decisionmaker,”
Christopher Dorworth, Rebecca Dorworth, and their closely-held business, CED Strategies. (Doc.
35-3 at 17).
The parties and witnesses frequently refer to this river as the “Econ” River.
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comprised of 1.5 million square feet of commercial space, 600 single-family
residential lots, 270 townhome lots, and 500 multi-family apartment units.
Two days before the Board of County Commissioners voted 5 on the
application, counsel for River Cross sent County staff an email adding the condition
that fifteen percent of the multi-family units would be “affordable housing units” if
it received approval for funding from a state agency. At a public meeting on August
14, 2018, after hearing from River Cross and residents of Seminole County, the
County Commissioners denied the River Cross proposal. Plaintiff subsequently filed
suit under the Fair Housing Act on October 2, 2018.
B. County-City Conflict and Passage of the County’s Charter Amendment
Seminole County, spanning approximately 220,000 acres, is made up of
densely-populated urban pockets in its western portion and less densely-populated
rural areas in the eastern section; about one-third of the county is designated a “rural
area.” (Doc. 1 ¶ 5; Doc. 52-1 at 11). According to the Decennial Census, the
population of Seminole County in 2000 was 365,196; in 2010, the population was
422,718 persons.6 In 2019, the population was estimated to be 471,826. (Doc. 52-1
Although River Cross had broached the subject of affordable housing orally during the
Planning and Zoning Commission meeting on July 11, 2018, River Cross did not make a formal
written submission until August 10, 2018.
The Court takes judicial notice of the 2000 and 2010 census figures available in the
Census.gov’s “FactFinder” resource. See http://www.census.gov/quickfacts. Judicial notice of
adjudicative facts such as census data may be taken sua sponte. See Moore v. Comfed Savings
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at 11). The percentage of the population living in the “rural areas” was less than 2%
of Seminole County’s total population. (Doc. 36-6 at 13).
The Econlockhatchee River (or “Econ River”), a 54-mile tributary of the St.
Johns River, acts as the current rural boundary where the land in the County east of
the River is predominately rural, and the western acreage is predominately urban and
contains most of Seminole County’s cities. (Doc. 1 ¶ 5). The property that River
Cross planned to develop abuts the Econ River and preservation-managed lands to
the west, and rural Orange County to the south at the Orange-Seminole County line
(Doc. 35-5 at 7-8).
Although Seminole County is a charter county, it did not have the power to
preempt annexation of land in the County until a charter amendment was passed in
2004. “The most significant feature of charter counties is the direct constitutional
grant of broad powers of self-government, which include local citizens’ power to
enable their charter county to enact regulations of county-wide effect which preempt
conflicting municipal ordinances.” Seminole County v. City of Winter Springs, 935
So. 2d 521, 523 (Fla. 5th DCA 2006) (internal citation omitted) (holding that the
amendment constitutes a proper exercise of the County’s home rule power under
Article VIII of the Florida Constitution).
Bank, 908 F.2d 834, 841 n. 4 (11th Cir. 1990).
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Although the County acted in 1991 to create an urban-rural boundary to
protect rural and environmentally-sensitive lands from urban sprawl in the eastern
part of the County—along the eastern edge of the City of Winter Springs—the
County’s charter did not provide for preemption of conflicting municipal land use
regulations and was not effective in controlling the urbanization of its eastern rural
lands. Id. at 524. Consequently, “the City could simply annex property protected
from dense development under the County’s Comprehensive Plan [and] [o]nce
incorporated within the City’s jurisdiction, the City could then incorporate the land
into its own comprehensive plan and change the land use designation to allow for
high-density development.” Id. Thus, the County’s urban-rural boundary was not
effective at deterring urban sprawl “[b]ecause the County’s charter provided that the
municipal ordinance would control in the event of a conflict” such that the “City’s
newly amended comprehensive plan would then control over the rural designation
in the County’s [p]lan, and development would proceed.” Id.
As the Florida Fifth District Court of Appeal summarized the situation:
This pattern was well documented in the record below, with testimony
regarding a dispute that arose over development of a subdivision at the
eastern edge of the City [of Winter Springs] known as Battle Ridge.
Litigation ensued between the County and the City. The litigation
settled when the County agreed to withdraw its challenge, allowing the
development to proceed, with the implicit understanding that this
development would represent the easternmost limit of the City’s urban
expansion. Shortly thereafter, however, the City increased the size of
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the utility lines that serviced the 110 dwelling units planned for Battle
Ridge to accommodate 1300 units. The City then proceeded to annex
three additional parcels immediately east of Battle Ridge and within
the County-designated rural area.
In response, the Seminole County Board of County Commissioners
proposed a charter amendment to the electorate that would provide for
County preemption of land use regulation in the rural eastern area of
the County. The measure was placed on the ballot for public vote
during the 2004 general election. The ordinance sought to amend the
County charter by changing the language in Article I, Section 1.4 of
the charter, from:
“Municipal ordinances shall prevail over County ordinances to the
extent of any conflict.” to:
“Except as otherwise provided by this charter, Municipal ordinances
shall prevail over County ordinances to the extent of any conflict.”
Id. at 524-25 (emphasis added).
The Charter Amendment—which was approved on November 2, 2004—
added a new substantive section to Article V of the County Charter, which became
a provision at issue in this case. The section contained provisions: (1) establishing
the Rural Boundary and the legal description of the “Rural Area,” incorporating
them into the Future Land Use Element of the Seminole County Comprehensive
Plan; (2) giving the Board of County Commissioners the authority to remove
property from the “Rural Area” and amend the Rural Boundary consistent with the
County’s future land use designations; and (3) giving County ordinances precedence
over municipal ordinances. Id. at 525. “The obvious purpose of the amendment was
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to assure that the land use designations of the County’s Comprehensive Plan would
control the density and intensity of development on all land in the ‘Rural Area,’
regardless of whether the land was subsequently annexed into a municipality.” Id.
The Fifth District Court of Appeal held that “the people have chosen to grant
preemptive land use regulatory power exclusively to the County. Their decision to
do so constituted a perfectly valid election under the Florida Constitution.” Id. at
529. (See Doc. 1 ¶ 5 (citing Seminole County, Fl., Ordinance No. 2004-36 § 1(d)
C. Florida Community Planning Act and the County’s Comprehensive Plan
1. Community Planning in Florida
Seminole County is a political subdivision of the State of Florida. (Doc. 1 ¶
2). In 1985 the Florida Legislature enacted what is now known as the Community
Planning Act, 7 to strengthen the processes of local governments in utilizing
comprehensive planning 8 programs to guide and control development. Tony A.
The Growth Management Act was enacted in 1985. Fla. Stat. Ch. 163. In 2011, the
Florida Legislature revised these state planning statutes, renaming them the Community Planning
Act, and “greatly reduced the state and regional agency oversight of planning and land
development activity. Fla. Stat. § 163.3161. However, the Act did not significantly reduce the
planning requirements for Florida’s county governments.” GUIDE at 126.
The Act requires that, before a county issues any development orders, the county must
ensure that the action is consistent with the comprehensive plan, thus, a local government who
decides to approve a development that is not consistent with the plan must amend the plan first.
See Fla. Stat. 163.3194(1)(a) (“After a comprehensive plan . . . has been adopted, . . . all actions
taken in regard to development orders by governmental agencies in regard to land covered by such
plan or element shall be consistent with such plan or element as adopted.”).
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Arrant, Planning and Growth Management, FLA. COUNTY GOV’T GUIDE, Ch. 11, at
126 (Fla. Assoc. of Counties 3d ed. 2012) (“GUIDE”). Consequently, Florida has
“one of the most comprehensive and progressive land use planning programs in the
country.” Id. at 123. Local governments must adopt, maintain, and implement land
use plans and development regulations for all future development actions, and all
development actions must be consistent with the adopted plan. Id. at 126, 128 (citing
Fla. Stat. § 163 et seq.). Once a county’s “comprehensive plan” is adopted and found
to be in compliance by the Department of Community Affairs, it then becomes the
“public policy decision making” guide for all development decisions within the
county. Id. at 126; Fla. Stat. § 163.3184. The Act is intended to help local officials
make decisions regarding the extent and timing of future growth, density of housing,
the intensity and compatibility of commercial or industrial development, and the
timing and distribution of growth in geographic locations of new development, as
well as the supporting infrastructure and the environmental resources of the area.
GUIDE at 126. The Act also requires that all comprehensive plans be “financially
feasible” and ensure that, when permitting development, the “specific area proposed
for development has the necessary supporting infrastructure and other development
characteristics that support the new development.” Id. at 127.
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The 1985 Act further requires that all plans include an adopted Future Land
Use Map,9 which depicts the future land use categories and policies that establish
the maximum densities for residential development and the maximum intensities for
non-residential development; all local governments must also adopt land
development regulations or local ordinances for comprehensive plan elements; these
include, for example, provisions that “ensure the protection of environmentally
sensitive lands” or “provide that public facilities and services meet or exceed the
standards established in the capital improvements element”; and “ensure safe and
convenient traffic flow.” Id. at 125, 136. Beginning in 2004, all local governments
were also required to identify adequate water supply sources to meet the anticipated
future demand for the established planning period. Id. at 125-26. An application to
rezone property must be consistent with the property’s Future Land Use Map and,
the applicant must apply for a Future Land Use Map (FLUM) amendment. Fla. Stat.
Ch. 163.3164. The FLUM application must be reviewed by the local planning
agency, in this case, the Seminole County Planning and Zoning Commission, which
makes a recommendation to the local Board of County Commissioners regarding
The following land uses are shown on the FLUM: 1. Residential use; 2. Commercial use;
3. Industrial use; 4. Agricultural use; 5. Recreational use; 6. Conservation use; 7. Educational use;
8. Public buildings and grounds; 9. Other public facilities; 10. Historic district boundaries; 11.
Transportation boundaries; 12. Natural resources including, rivers, wetlands, lakes, etc.; and 13.
Public buildings. GUIDE at 128-29 (citing Fla. Stat. Ch. 163, Part II).
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whether the proposed FLUM amendment is consistent with the County’s
Certain data is considered in support of the land use designations and the
Future Land Use Map to determine whether the plan discourages the proliferation of
“urban sprawl”: surveys, studies, and analysis of the county, including the amount
of land required to accommodate anticipated growth; the projected population; the
character of undeveloped land; the availability of public services needed to serve
new development, and the need for development. GUIDE at 129. “Urban sprawl”
refers to urban developments that are located in predominantly rural areas, or rural
areas interspersed with generally low-intensity or low-density urban uses, and that
are characterized by: (a) premature or poorly planned conversion of rural land for
other uses; (b) the creation of areas of urban development which do not relate to land
uses which predominate in the adjacent area; or (c) the creation of areas of urban
development which fail to maximize the use of existing public facilities and services.
Id.; Fla. Stat. § 163.3164(52). Urban sprawl is typically seen in land use patterns that
“leapfrog,” are scattered, contain strip commercial space, or are large expanses of
predominantly low-intensity, low-density, or single-use development. GUIDE at 129.
In a local government’s plan, it must also address the affordability and the
availability of housing for all segments of the county’s population, considering the
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housing stock and provision of adequate sites for future housing with supporting
infrastructure and public facilities. Id. The plan must consider infrastructure
elements such as the sanitary sewer, solid waste, drainage, potable water, and natural
groundwater aquifer recharge availability, establishing priorities for future
infrastructure facilities to serve the existing and projected populations in future
developments. Id. Local comprehensive plans must also address the conservation,
use, and protection of natural resources, including water, water recharge areas,
wetlands, waterwells, soils, flood plains, rivers, lakes, fisheries, wildlife, and other
natural resources. Id. at 130.
2. Seminole County’s Comprehensive Plan
In 1987, Seminole County adopted the general “rural” and the “suburban
estates” future land use designation for the eastern rural area of the County which
has “a lot of environmentally sensitive areas.” (Doc. 35-2 (BCC Tr.) at 26). In 1991,
after the County submitted its Comprehensive Plan to the Florida Department of
Community Affairs, the Department cautioned that the “suburban estates”
dsignation of one dwelling unit per one acre was considered to be “urban sprawl.”
(Id.). In response, Seminole County commissioned a study for the east rural area and
subsequently created several “rural” future land use designations and amended the
agricultural zoning districts—including the one at issue on the proposed site in this
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case—of one dwelling per ten acres. (Id.). The adjacent land to the north and west
of the proposed site were developments zoned for one dwelling per five acres; to the
south (in Orange County) the land was zoned to allow one dwelling per ten acres;
and to the west was Seminole County’s preserved management wilderness area.10
(Id. at 27).
The Seminole County Board of County Commissioners (the “BCC”) created
the “East Rural Area” of Seminole County when it adopted the 1991 Seminole
County Comprehensive Plan Update. (Id. at 28). This was done for planning
purposes to: (a) “protect the character of the area as agricultural and rural
residential”; (b) ensure the cost-effective provisions of public services; (c)
discourage urban sprawl and limit urban uses to eliminate the need for significant
investments in capital improvements; and (d) protect and conserve natural and
environmental resources in the county such as the wetlands, floodplains, native
vegetation, environmentally sensitive areas including the Econlockhatchee River,
and groundwater aquifer recharge areas. (Id.; Doc. 35-5 at 8). Following adoption
by the County of the “rural character plan” in 2006, the County focused its planning
The Econ River Wilderness Area was purchased by Seminole County in 1994 for $3.5
million through the County’s Natural Lands Program. Developer Chris Dorworth Submits Plans
For Seminole’s Econ River Wilderness Area, ORLANDO SENTINEL, April 3, 2020 (describing land
swap settlement proposal). Seminole County voters previously approved funding which was used
to purchase natural lands in the east rural area of the County. (Doc. 35-2 at 328).
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policy to maximize development in the urban areas through the County’s
comprehensive planning, in the future land use element, and in transportation
planning, by intentionally creating compact land use patterns to discourage sprawl
and decrease automobile trips. (Doc. 35-2 at 33). Comprehensive plan amendment
proposals in Seminole County are evaluated based on timing, compatibility, and
public facility considerations as major considerations. (Id. at 35-36).
D. History of the Proposal’s Consideration by Seminole County
1. Purchase Agreement
On February 3, 2018, River Cross entered into a Real Estate Purchase
Agreement (the “Purchase Agreement”) to purchase the property for the proposed
development—consisting primarily of old pastureland, citrus groves, and woods—
from the seller, Hi-Oaks, LLC. (Doc. 35-6).11 The Purchase Agreement contains a
provision that makes the sale of the proposed site contingent on “satisfaction as to
the feasibility of developing the Property for the Development.” (Id. at 6).
On May 1, 2018, to determine the project’s feasibility, River Cross filed an
application to convert approximately 670 acres in the rural area, east of the Boundary
Line, from rural-agricultural zoning to planned development zoning into 1.5 million
See Dorworth Pitches New Proposal for River Cross Property, ORLANDO SENTINEL,
April 7, 2021.
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square feet of commercial space, 600 single-family residential lots, 270 townhome
lots, and 500 multi-family units. (Doc. 1 ¶ 12). 12 According to the County’s
Comprehensive Plan, the applicable rural zoning designations 13 allow rural
residential development at densities equal to or less than one dwelling unit per five
acres and permit agricultural uses; this Rural Area of the County is “where urban
services are minimal or non-existent.” (Doc. 35-5 at 8).
On May 24, 2018, the DRC provided River Cross with a Development Review
Committee (“DRC”) Comment Document containing the DRC’s comments on the
application. (Doc. 35-8). On May 30, 2018, River Cross had a meeting with the
County staff at the Development Review Committee regarding its application. (Doc.
1 ¶ 16). Following the meeting, River Cross requested an extension of the DRC
meeting and met with staff again on June 5, 2018. (Doc. 35-2 at 37). The June 5,
2018 DRC meeting lasted approximately 1.5 hours until River Cross had no further
River Cross applied for amendments to: the Charter Section 5.2 to remove the Property
from the East Rural Area; the Comprehensive Plan to amend the Urban/Rural Boundary Line to
remove the Property from the East Rural Area; the Future Land Use map from “Rural 5” to
“Planned Development”; and rezoning of the Property from “A-5 Rural” Zoning to Planned
Development zoning. (Doc. 35-5 (Planning & Zoning Comm. Tr.) at 7-8; Doc. 36-8 ¶ 3).
The Rural 5 Future Land Use designation limits development to equal to or less than one
dwelling unit per five acres and the A-5 Zoning classification permits such uses as rural residential,
agricultural operations, and attendant structures such as barns, silos, and riding stables. (Doc. 355 at 8).
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questions. (Id.) River Cross did not respond to the DRC Comments. (Doc. 35-5 at
2. Planning and Zoning Commission Meeting
On July 11, 2018, River Cross presented the application to the Planning and
Zoning Commission. (Doc. 35-5). The initial development order submitted by River
Cross did not contain any reference to “affordable housing” targeting minorities.
(Doc. 35-7). In its rebuttal presentation, River Cross mentioned that it planned to
include 15% “affordable housing” in the development; however, affordable housing
was not included in the submitted development order or plan. (Doc. 35-5 at 20-22).
No additional written submission explaining the proposed “affordable housing”
provision was submitted to the Planning and Zoning Commission.
Following the River Cross presentation, the Planning and Zoning Commission
heard from thirty audience members who spoke in opposition to the project; no one
in the audience spoke in support. (Doc. 35-5 at 18). Rebecca Hammock, the Planning
and Development Division Manager, provided a summary of information from the
Staff Report14 to the Planning and Zoning Commission, specifically noting with
regard to the affordable housing provision:
The Staff Report was part of the Agenda packet and part of the public record. (Doc. 35-
5 at 7).
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The applicant’s narrative states that 15% of the residential units within
the proposed project will be developed as Affordable Housing. . . .
However, the proposed Development Order and Master Plan have no
provisions or commitments to [e]nsure the development of affordable
units, nor do the documents specify what income level would be served.
(Id. at 9; see also Doc. 35-2 at 18). Ms. Hammock presented numerous
additional issues the County staff had specifically identified with the River
* The subject property is located within the Econ River Corridor
Protection Zone and would be required to comply with all the
regulations mandated by the protection zone.
* The Econ River is classified as an outstanding water body, which is
designated worthy of special protection because of its natural attributes.
* The subject property is also located in the Geneva Fresh Water Lands
Resource Protection Area, which pursuant to the Comprehensive Plan
Conservation Element Policy 1.10 requires appropriate land use
densities and intensities to protect its critical recharge function.
* The subject property contains 311 acres of flood plain, 275 acres of
wetland, and six (6) wildlife species that are listed as threatened or
species of special concern including the gopher tortoise, Florida Sand
Hill Crane, and the Little Blue Heron.
* The subject property is located outside of Seminole County’s existing
permitted utility service area.
* Seminole County Comprehensive Plan states that new development
outside adopted central service areas shall not be designated nor
constructed with central water and/or sewer systems.
* However, development densities and intensities as requested by the
applicant would require connection to central water and sewer.
* As part of the requested Urban/Rural Boundary Amendment, data and
analysis is required by the Future Land Use Element Standards for
amending the Urban/Rural Boundary to demonstrate the availability of
facilities and services in the orderly, efficient, and cost effective
provision of service.
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* Such analysis, as outlined in the Staff Report, was not provided with
* In addition, extending water and sewer service to the subject property
would require amendments to the County’s water and sewer Master
Plan and modifying the County’s Consumptive Use Permit with the St.
Johns River Water Management District.
* In addition, supplying potable water and sanitary sewer utilities to the
subject site would require crossing the Econ River.
* Policy FLU 1.10 of the Comprehensive Plan states that there shall be
no additional crossing by road, rail, or utility corridors unless three
conditions are met: 1) there is no feasible or prudent alternative to the
proposed crossing as determined by the County, 2) all possible
measures to minimize harm to the resources of the Econ River Basin
will be implemented, and 3) the crossing supports an activity that is
clearly in the public interest as determined by the County.
* The application does not demonstrate that these three conditions have
* A transportation analysis for the River Cross PD was prepared by
VHB and there are multiple outstanding issues with this analysis as
outlined in the Staff Report.
* In addition, the application did not adequately address how the needed
transportation improvements to support the proposed development
would be funded or constructed.
* It does not appear that any coordination has occurred with Orange
* For example, the narrative states that the extension and four-lane
widening of McCulloch Road from Old Lockwood Road to County
Road 419 is expected to be constructed as part of the Sustany and River
* The Sustany project is not currently an approved or active project in
Orange County Commissioners had rejected the nearby Sustany project in November
2016. (Doc. 35-2 at 207; Orange County Rejects Controversial Project East of the Econ River,”
ORLANDO SENTINEL, Nov. 15, 2016). McCulloch Road runs along the county line between
Seminole County to the north and Orange County to the south, and the road apparently does not
extend to the proposed development site for the River Cross project.
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* The proposed River Cross Development Order does not make any
commitments with regard to the developer funding, constructing, or
conveying right-of-way for the improvements to McCulloch Road.
* The extension of McCulloch Road would also require demonstration
of compliance with Future Land Use Policy 1.10 to cross the Econ
River and the application did not demonstrate the three conditions in
the policy had been met.
* Thus, without the additional information the report is incomplete and
compliance with the County’s Comprehensive Plan policies related to
transportation cannot be established.
* The proposed PD Zoning designation and associated Master
Development Plan have been evaluated for compatibility with the Land
Development Code of Seminole County in accordance with Chapter 30,
* The applicant submitted an application to rezone the subject property
to Planned Development and it went through one review cycle with the
Development Review Committee and they chose not to resubmit to
* The deficiencies in the applicant’s submittal precluded determination
of consistencies with the County’s Land Development Code
requirements including Section 30.445(a) Master Development Plan
Submittal Requirements and Section 30.442 PD Permitted Uses.
* In addition, the proposed PD Zoning designation, as submitted,
appears incompatible with the surrounding area and the trend of
development in the area.
* The proposed PD with a maximum density of 30 dwelling units per
acre, intensity of 0.6 F.A.R., and a maximum building height of 75’ is
incompatible with the surrounding Future Land Use and Zoning
designations of Rural 5 and A-5 in Seminole County, as well as with
the adjacent Orange County Future Land Use designation to the south
of Rural 1 per 10 [acres].
* The Rural A-5 Zoning classification permits rural residential uses and
* Therefore, the proposed urban uses within the PD could create
conflict for the allowable agricultural uses on the surrounding
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* The PD proposes buffers of only 25’ and 50’, which are not sufficient
to create compatibility along adjacent rural land uses and provide a
clear separation between rural and urban uses.
* Thus, the proposed project does not support the objectives of the PD
Zoning designation, because it does not provide adequate buffering and
transitions to maintain compatibility between the proposed PD and
* The County Comprehensive Plan Future Land Use Element contain
standards of review for Comprehensive Plan Amendments, as well as
standards for amending the Urban/Rural Boundary, which include
demonstration of need, locational analysis, consistency with the goals,
objectives and policies of the Comprehensive Plan.
* Staff has determined that the standards of review for both the
Comprehensive Plan Amendments and the standards for amending the
Urban/Rural Boundary have not been met as outlined in the
Comprehensive Plan Summary Information Report attached as Exhibit
11 to the Staff Report, which also includes the Balmoral Group
Technical Memorandum. . . .
* Staff finds the request to be inconsistent with the Comprehensive
Plan, Land Development Code, and incompatible with the trend of
development in the area as detailed in the Staff Report in your agenda
packet and contained in the public record.
(Doc. 35-5 at 5-11).16 In response to a question from the Chair of the Planning and
Zoning Commission, Michelle Ertel, concerning whether any negotiations had
occurred between River Cross and County staff to facilitate its ability to meet the
standards that the County requires, Ms. Hammock responded that staff
recommended denial in part based on insufficiency of the application because, after
These identical concerns of the County staff were presented, nearly verbatim from the
written recommendations in the Report, to the Board of County Commissioners at the August 14,
2018 meeting by Bill Wharton, the Principal Planner with the Planning and Development Division.
(Doc. 35-2 at 16-25).
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one review cycle through the DRC, River Cross chose not to resubmit to address the
staff comments, and instead requested to move forward through the public hearing
process. (Doc. 35-5 at 11). Following the presentations, the Planning and Zoning
Commission voted on July 11, 2018 to recommend denial of the River Cross
rezoning application and proposed amendments. (Id. at 23).
3. August 10, 2018 Email Regarding Affordable Housing
Late in the day on Friday, August 10, 2018–effectively one business day
before the Tuesday, August 14, 2018, BCC meeting when the River Cross
application would be considered—counsel for River Cross sent an email to the
County Commissioners and County staff with the subject line “River Cross:
Supplemental Information” and “a few items for consideration as you review the
staff report” for Tuesday’s River Cross hearing. (Doc. 35-11). This email included
an updated Proposed Development Order with a provision for “affordable housing”
that counsel had discussed at the July 11, 2018 Planning & Zoning Commission
meeting but had not submitted in writing until August 10, 2018. (Docs. 35-12; 35-2
The updated Proposed Development Order contained a new section on
“affordable housing,” in which River Cross stated its intention that 15% of the 500
multi-family units—75 units—within the Project would be “developed as affordable
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housing units.” (Doc. 35-12 at 3, § 3(B)(g)). The “affordable housing” provision, as
proposed, was contingent on the approval of “funding from the Florida Finance
Corporation17 for the development of the affordable housing units” and only if “the
funding was obtained within thirty days of the issuance of the Certificate of
Occupancy for the multi-family units.” (Id.). If River Cross was “unable to obtain
such funding within thirty days, the units would revert to market-rate units.” (Id.).
This was the first time that the River Cross Proposed Development Order
included a reference to affordable housing. (Doc. 35-12). When Seminole County
staff asked counsel for River Cross whether the “Supplemental Information”
regarding the inclusion of the “affordable housing” application to the Florida
Housing Finance Corporation was part of a “formal resubmittal,” counsel replied
that the August 10 Proposed Development Order was for “informational purposes”
only. (Doc. 35-11 at 1). As such, the County planning staff treated it as “just for
information” and the “staff did not do a formal review on it.” (Doc. 35-2 at 320).
4. August 14, 2018 Board of County Commissioners Meeting
On Tuesday, August 14, 2018, the BCC considered the River Cross
application: (1) to amend Seminole County’s Comprehensive Plan and the Rural
Boundary Line to remove the Property from the Rural Area; (2) to amend Seminole
The correct name of the agency is the Florida Housing Finance Corporation.
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County’s Future Land Use Map to remove the Property from the Rural Boundary
Line; and (3) to rezone the Property from Rural-5 to Planned Development zoning.
(Doc. 35-2 at 25, 35). At the meeting, fifty-one residents spoke in opposition to the
River Cross Project; only the seller of the Hi-Oaks property spoke in support. 18
(Doc. 35-2 at 185). The County staff repeated their concerns, first presented at the
Planning and Zoning Commission meeting, to the Board of County Commissioners
at the August 14, 2018 meeting. (Doc. 35-2 at 16-25). In addition to opining that the
request was “inconsistent with the comprehensive plan, the land development code,
and incompatible with the trend of development in the area,” the staff found “the
application to be incomplete” and recommended that the Board of County
Commissioners deny the River Cross application and rezoning of the land. (Doc. 352 at 24, 35).19
At the end of the BCC Meeting, Seminole County Commissioner Dallari
made a motion to deny the River Cross application based on the evidence presented
and his opinion that the application was incomplete. (Id. at 322). The rest of the
Seminole County Commissioners voted on the motion to deny the River Cross
One Commissioner received 538 emailed communications; another had received more
than 100 phone calls. (Doc. 35-2 at 8).
As a practical matter, if the first application to amend the urban boundary falls through
on the standards of review, the next two applications would be moot, as the urban future land use
or rezoning designation will not be amended if the application does not meet the first standard to
amend the urban rural boundary. (Doc. 35-2 at 35).
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application20 and it passed unanimously, which meant that the proposed Boundary
Line Amendment was denied as well; the County subsequently issued a Denial
Development Order. (Id. at 330).
As the County staff explained, in conjunction with amendment of the
Seminole County urban-rural boundary, an applicant must show a demonstration of
need for the project with a locational analysis of the proposed amendment area, and
it must be consistent with the goals, objectives and policies of the local
comprehensive plan and regional plans. (Id. at 35, 67). The analysis includes
assessment of whether there is a “the lack of suitable or vacant land in the urban area
to provide affordable housing” (Id. at 36), the economic development, and the
critical public facilities. (Id. at 68). The applicant “shall provide” the “data and
analysis” to document that additional lands are: (1) “required to support affordable
work force or obtainable housing opportunities and choices in proximity for
employment opportunities and public transportation” or (2) “needed to achieve the
adopted redevelopment goals of the County because of the lack of suitable redevelopable or vacant land within the urban area.” (Id. at 36). Under the Seminole
County Code, an applicant is charged with providing the County enough
Since the BCC voted not to transmit the proposed Comprehensive Plan Amendments at
the conclusion of the Transmittal hearing, the effect of the BCC action was to deny the River Cross
application. Since there was no pending Comprehensive Plan or PD rezoning application, it was
unnecessary to modify the Charter Rural Boundary.
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documentation to determine that the additional developable land is needed and the
existing urban area is insufficient to achieve that outcome. (Id. at 38).
To demonstrate a need to change the comprehensive plan, River Cross had to
show a lack of vacant land in the urban area for affordable housing and economic
development. River Cross stated that its proposal was “in compliance with this
element of the standard of review based on the fact that they were providing 15
percent affordable housing” and “the County lacks affordable housing.” (Id. at 36).
“However, as Ms. Hammock explained during the BCC meeting, that is not the
standard.” (Id.). Instead, “the standard is whether there is a lack of vacant land in the
urban area to provide for affordable housing,” and the “staff has determined that the
standard has not been affirmatively met.” (Id. at 36-37).
Craig Diamond21 of the Balmoral Group, serving as a consultant to the County
primarily for long-range population projections, opined that the “demonstration of
need” element was not met by River Cross “at all,” and the other two required
elements were met only “in part.” (Id. at 67-68). Mr. Diamond explained that, even
though “the applicant is required to provide information to qualify,” the River Cross
proposal lacked the sufficient documentation to make a proper assessment, and “a
Mr. Diamond has fourteen years of experience in urban planning for local and regional
governments. (Doc. 35-2 at 65).
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lot of the [regional] policies that were provided” by River Cross were “really not
applicable and taken out of context.” (Id. at 69-70).
Mr. Diamond did not think “any” of the analysis River Cross provided as
justification for moving the urban boundary “passed muster”: based on general
population and general housing needs; affordable housing and workforce housing;
occupation and economic development; and critically needed public facilities. (Id.
at 71). “Insufficient data was provided or insufficient demonstration that there was
a need beyond what the existing urban area could provide; they were “a critical lapse
in addressing [the] three required  standards” from Seminole County’s
Comprehensive Plan. (Id.).
As Mr. Diamond explained to the Commissioners, River Cross had provided
its own original population projections, with respect to the generalized population
and housing need, even though Seminole County specifies that applicants “are to use
the County’s numbers and not use their own.” (Id. at 72). In addition, he explained
other deficiencies in the River Cross supporting materials:
[River Cross] had opted to apply a “persons per household” (PPH)
statistic—a typical census tool for looking at the density and persons
per household—show[ing] a number that was smaller than th[ose in]
the census as of 2016 for Seminole County. Critically, the applicant did
not consider the future land use map category and the densities allotted
therein for the various vacant parcels that were to be looked at. [The
applicant] also failed to consider that [the County] ha[s] a bunch of
additional policies looking at redevelopment and a wide range of other
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policies that ultimately do affect housing supply. So for population
projections, [Balmoral has] been providing you population projections
now for a couple of years. The applicant did look at the buildout …
looking at 2038 as the endpoint. [Balmoral has] been providing data to
[the County] in five-year increments out. So some interpolation was
required. And the consultants [for] the applicant came up with 559,000
in the year 2038; we had provided information about 552,000. Not a
big difference [of 7,000], but the applicant applied a higher number,
which in turn, is part of their justification for  the additional housing
that they were looking to supply [in the County]. Again, the numbers
have been provided to [Seminole County and] have been accepted by
the County and are in use by your departments.
(Id. at 71). Mr. Diamond further pointed out that River Cross also used its own values
for “persons per household” which skewed the population figures on the high side,
and he had to correct those population figures to so that the long range projection
was “closer to 31,000” new units based on long range projections and not the 41,000
new units that the River Cross consultant’s report indicated that the County would
need by 2038. (Id. at 73). The “next step” in his analysis was calculating whether
there was enough vacant land to accommodate or “absorb” the expected population
growth in households:
The existing vacant land is a critical component to understand what is
the absorptive capacity of the county going forward. The applicant
determined . . . [there were] 7,300 vacant residential lots per the
property appraiser . . . [Balmoral has been] using the certified tax rolls
from the Department of Revenue for all of our work for counties. . . .
That’s the standard. . . . [A]ccounting . . .[for] parcels that specifically
are residential . . . we had 8,277. A difference of about 978 [lots]. It’s
not small  when we’re looking at this sort of number. . . . [W]orking
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with numbers that we’ve got, we’re now down to closer to long-range
need within the planning horizon after 2038 of about 30,000 units.
(Id. at 74). He described the “critical touch point” of the erroneous analysis provided
by River Cross as the fact that its consultant had “assigned a single unit per each
vacant lot and subtracted that” from the total, even though it distorted the absorptive
capacity by “in a sense, extending th[e] approach” used as to the proposed site, zoned
as rural (R-3, R-5, R-10), to the analysis of absorption on a “countywide” basis. (Id.).
However, by Mr. Diamond’s calculation applying the population figures the County
uses derived from the Census—figures that River Cross declined to utilize—and the
number of available lots from Department of Revenue records, there was sufficient
vacant land in the urban area and this directly contradicted the “demonstration of
need analysis “ River Cross had relied upon. He said in summary to the BCC:
[T]he point is under the buildout, the current FLUM categories more
than address 30,000 units going out through your planning horizon. The
plan developments that you’ve got in the pipeline alone, vacant lots
within those not yet built account for almost 90,000 units. Even if you
were to build out at a density of about two-thirds of what’s allowable
under your [comprehensive] plan, you’d still have the cushion to get
out through your planning horizon.
So to emphasize again, that 40,000+ units that’s vacant lots only with
no other policies that you’ve got in your comp plan attached. [The]
County’s policies, and those of several of the city’s, all provide bonuses
for properties that are pre-certified. Most importantly are in key transit
corridors and around the Lynx [bus] stations and Sunrail [trains]. A lot
of those policies provide up to 50 percent bonus, recognizing that there
are . . . policies operating both within the county and your sister cities,
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there are an additional 54,000 potential units if all built out at the
maximum intensities that the comp plans currently provide. You even
have today a couple projects coming in for redevelopment, . . . some of
those will be approved and additional units in a sense become available
for absorption. What we’re looking at is a static interpretation of your
comp plan of vacant lots and lots that are  free [for] development
based on current use and . . . proximity to [services in the urban area]. .
. . [I]n total, we’re looking at about 98,000 lots that are potentially
available to you through the planning horizon. Certainly a lot more than
30 [thousand] or even the 41 [thousand] or so that the applicant
(Id. at 75-76 (emphasis added)). As Commissioner Horan pointed out “that’s one of
the reasons why we’ve adopted said policies to encourage development in those
urban areas . . . [t]o make sure that . . . those particular lots . . . [that] aren’t all
batched together. . . . [s]o that the last one in doesn’t get left out in the cold, we have
these policies that encourage development in those areas.” (Id. at 75).
Ms. Hammock recounted the discussions River Cross had with County staff
regarding the lot sizes, transitional land uses, buffer zones, and “justification [which]
should be provided with the resubmittal as to why this property is unique and should
be removed from the rural area and why removing it wouldn’t create a domino
effect.” (Id. at 39-40).22 “[T]he standards of review for amending the urban rural
boundary are high [and] they’re meant to be difficult or high standards to meet
Of two other properties where the boundary line had been amended, one was 4 acres and
the other had been the property annexed by the City of Winter Springs, as described in Seminole
County v. City of Winter Springs, 935 So. 2d 521, 523 (Fla. 5th DCA 2006).
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because they are to ensure that the development potential of the urban area had been
fully exhausted before encroaching into the rural area.” (Id. at 88).
Ms. Hammock further explained that the River Cross proposal as submitted
would be “urban sprawl,” in that it was “requiring an extension of public facilities
and  services in an inefficient manner and it fails to provide a clear separation
between urban and rural uses. [River Cross] states that the project is, in fact, not
urban sprawl because it proposes a mixed use development and is providing
affordable housing.” (Id. at 40). “However,” she explained, the River Cross proposal
“does not provide a linkage between their residential uses and their nonresidential
uses. They’re proposing all of the residential uses or majority of the residential uses
within phase one, and their nonresidential uses within phase two. But they do not
have any requirement within the [proposal] for the two [phases] to develop
concurrently or to have a ratio of nonresidential and residential uses. Therefore, it
ends up – it isn’t truly mixed use at all.” (Id.). She also noted that the proposal for
“affordable workforce housing” was not a firm commitment either—River Cross
had submitted it for “informational purposes” and stated that it “would apply for
federal funding for affordable housing and  if [River Cross] did not obtain it that it
would revert to market rate rental apartment”; it was “really no commitment”
because there was no assurance that the proposed “affordable housing units” would
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“indeed exist as part of the Project.” (Doc. 35-2 at 319). The principal of River Cross,
Mr. Dorworth, acknowledged that there was no way to know whether the River
Cross project would receive funding for the development of affordable housing.
(Doc. 35-3 (Dorworth Dep.) at 213).23
5. Affordable Housing Proposals in Seminole County
Melody Frederick, the Compliance Officer for the Community Services
Department, who specializes in affordable housing and development for the County,
explained that as part of the competitive approval process for tax credits for
affordable housing through the Florida Housing Finance Corporation an applicant
has to demonstrate that there is a lack of suitable or vacant land in the urban area to
provide affordable housing. (Doc. 35-2 at 41). The tax credit funding applications
are evaluated primarily for the population the project will serve, the number of units
the project will provide as well as “the proximity to services to transportation
centers, employment, and the like.” (Id.). The existing affordable housing units were
scattered throughout the county and are not concentrated in a single area; Florida
Housing Finance Corporation would not approve new developments in one
particular census track where there were several tax credit projects already clustered
Mr. Dorworth testified the 15% would be of the 1370 total residential units (Doc. 35-3
at 210); however, the Proposed Development Order stated the affordable housing units would be
15% of the 500 multi-family units. (Doc. 35-12 at 3).
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to avoid exacerbating the conditions where there is a concentration of people in
poverty. (Id.) Ms. Frederick showed a list of approximately 4,800 units 24 of
affordable housing in tax credit projects with 75 units or more (not including the
County’s home ownership programs) that had been recently developed. (Id.) There
are very specific standards to receive funding for the tax credit process, and it was
important to locate the housing near employment centers, transportation and transit
areas because people with lower incomes needed to be able to get to work and
transportation was a significant issue; the affordable housing was typically located
in areas where infrastructure already existed.25
In Seminole County, the transportation centers were in the urban portion of
the County, according to Ms. Frederick. In deciding where to place affordable
housing, counties had traditionally considered the cost of housing not being more
than 30 percent of a household income; but there more recently had been “a
paradigm shift happening with affordable housing,” to consider “a housing and
transportation availability index” or an “affordability” index. . . To have a good score
Ms. Frederick explained in response to a question from Commissioner Horan that the
County actually had more than 5,000 FHSC properties, however, the listing she presented during
the BCC meeting contained only those developments that contained at least 75 units, thus,
comparable to the River Cross proposal. (Doc. 35-2 at 48).
In partnership with other Central Florida cities and counties, Seminole County hired the
Shimberg Center of Affordable Housing to create a model to help determine where affordable
housing would be best suited to be located. (Doc. 35-2 at 45).
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your housing costs and your transportation costs shouldn’t exceed 45 to 50 percent
of your income.” (Id. at 46). The River Cross proposed site was in an area with a
high number, “between 78 and 87 percent of any household in this area’s income
could be devoted to both transportation and housing costs, and that’s because of its
distance away from transit, bus services, things of that nature, which could cause a
significant strain for households that have a limited income source.” (Id. at 46-47).
“The tax credit programs focus mainly on the most vulnerable populations that exist
[such as] the elderly, disabled, and lower-income families. And so, when you take
all of that into consideration, it gives a very telling picture for you. It’s also important
to note that during this entire process the applicant—neither the applicant nor the
representative—ever contacted community services to sit down and kind of talk
through these affordable housing issues.” (Id. at 47) Had that occurred, she said, the
County would have “been able to touch base with them and give them a little bit
more direction and talk about all the ways that Seminole County does support
affordable housing, equal funding, and other programs.” (Id.).
In response to a question from Commissioner Horan noting that Seminole
County BCC had been “on the tip of the spear with regard to affordable housing
projects,” Ms. Frederick explained:
Seminole County’s been very supportive of affordable housing.
They’re one of the few who actually put grant dollars to provide the
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local contribution towards tax credit projects, generally $50,000 per
development that is approved for tax credit does get grant funding
approved through Seminole County, of course. And in my past work at
other places there aren’t very many local governments that actually put
forth any money towards that. And so, I do want to say that Seminole
County does look at things in a very effective way and you do try
always to be as supportive as possible. And we typically get seven to
eight applications for tax credit developers each year, but it’s a very
competitive process. But Seminole County has always put forth funding
to support that as well.
(Id. at 49).
6. Infrastructure Concerns
Ms. Hammock explained that the County staff had analyzed whether the data
and analysis “demonstrate[d] the availability of facilities and services and the
orderly, efficient, cost-effective provision of services,” and “whether the County
ha[d] the fiscal capacity to provide adopted levels of service.” (Doc. 35-2 at 36).
Staff found that the standard had not been demonstrated to be affirmatively met for
the services such as water and sewer, public safety, fiscal, county for fire and police,
and transportation. (Id.). Therefore, the “major outstanding question” was: “What is
the fiscal impact to the county for extending urban services and facilities in an area
not previously planned for urban services and facilities?” (Doc. 35-2 at 36-37).
Mr. Diamond pointed out additional omissions in the River Cross proposal
because there were “no details in the application provided for how water and sewer
were going to be extended” or a time frame for capital improvements, or the fiscal
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capacity impacts, which he calculated as $8.9 million based on county rates and the
anticipated size of the development. (Id. at 83). The County’s Comprehensive Plan
also called for “contiguous” urban development patterns to discourage sprawl and
he pointed out that there were none next to the proposed site. (Id. at 85).
The manager of the County Utilities Engineering Division, Johnny Edwards,
explained the County staff had informed River Cross that the infrastructure for
potable water and sewer did not reach the proposed development and stopped west
of the Econ River. (Id. at 51). Capital improvement programs and investment had all
been made in the urban area, with no plans to go out into the rural area; potential
growth and development within the service areas were all inside of the urban
boundary. (Id. at 54-55). The County’s “consumptive use permit issued by the St.
Johns River Water Management District d[id] not include the proposed
development”—it was beyond the County’s services area and “we’re not permitted
by the State of Florida to serve water to this proposed development at this time
without modifying that permit.” (Id. at 53).
The consumptive use permit would accommodate the needs “based on
projections of growth and development and water demand” within the County’s
urban areas; the County had standards that apply to the service areas within the urban
boundary. (Id. at 54). He explained that “the consumptive use permit would suggest
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[that] if we’re providing water somewhere else, we may not have enough water for
the areas in which it was originally planned.” (Id.). Under the comprehensive
planning requirements, the County was required to evaluate the impact of new
development on existing customers and “shall not expand if we cannot continue to
provide th[e] minimum levels of service.” (Id. at 56). Any new developments outside
the urban area must “continue to rely primarily on many individual wells” and “shall
not be designed or constructed with central water or sewer systems,” with the cost
to extend waterlines to new developments to be borne by the development. (Id.). The
projections for the ten-year water supply facilities for potable water would require
that the River Cross project “would have to be located within the urban boundary
for [the County] to provide central water service”; the sanitary sewer element would
mirror these issues and requirements. (Id.). He also identified issues with whether
pumps were sufficient, the impact on the County’s capital project plans, the review
of existing agreements between the County and other utility providers, and the
impact to existing customers. (Id. at 57).
In the rural area developments, the wastewater was primarily served by septic
tanks and not constructed or designed with central water and sewer. (Id. at 58). As
Mr. Edwards made clear to the BCC:
Conclusions here are largely the same. [The development] needs to be
within the urban boundary and we’d need to update our wastewater
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plan. Again, the same types of evaluations would need to be conducted.
We don’t have this information yet. It was not included with the
application. So our conclusions were that the application was
incomplete. It doesn’t show us compliance with the comprehensive
plan policies that we just discussed.
E. Procedural History in United States District Court
Following denial of the proposal by the BCC, River Cross filed suit in this
Court against Seminole County on October 2, 2018, alleging a violation of the Fair
Housing Act (“FHA”), 42 U.S.C. §§ 3604 and 361, arising out of the Board of
County Commissioners’ denial of the application based on the 75 multi-family units
of “affordable housing” it had added to its proposal. (Doc. 1). The County moved to
dismiss the Complaint on October 24, 2018 (Doc. 8), which the Court granted in part
on February 3, 2019. (Doc. 18). On January 31, 2020 the parties moved to
administratively close the case while River Cross submitted a “land swap”
settlement proposal to the County, which it needed to consider through the
administrative process. (Doc. 50). 26
On April 1, 2021, Mr. Dorworth emailed a subsequent proposal from River Cross to the
County attorney seeking approval for development of “1338 residential units and 200,000 square
feet of space for offices, stores, and restaurants.” Dorworth Pitches New Proposal for River Cross
Property, ORLANDO SENTINEL, April 7, 2021. However, the County Commissioners voted against
this modified proposal two weeks later. Seminole Commissioners Reject Dorworth’s Latest River
Cross Proposal After Closed-Door Meeting, ORLANDO SENTINEL, April 21, 2021.
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While the case was administratively closed, Seminole County informed the
Court27 that River Cross had filed, on May 19, 2020, a related case in the Circuit
Court of the Eighteenth Judicial Circuit in and for Seminole County, styled River
Cross Land Company, LLC and Christopher E. Dorworth v. Seminole County, Case
No. 2020-CA-001202. In the complaint filed in the state court docket, River Cross
seeks a declaratory judgment invalidating the provisions implementing and
enforcing the “rural area” and “boundary line” in the Seminole County Charter,
arguing they are unconstitutionally vague. (Id.).28
On August 14, 2020 the parties jointly moved to lift the administrative stay
(Doc. 56) and have the Court decide the parties’ Daubert Motion, Motions for
Summary Judgment, and Motion In Limine (Docs. 34, 35, 36, 44) without any
additional briefing of the issues on the FHA segregative-effect claim. The Court
initially ordered the parties to show cause why the administrative stay in the case
should not be extended while the state court case proceeded in order to conserve
judicial resources and avoid inconsistent outcomes regarding the validity of
Seminole County’s Charter as it relates to enforcement of the “Boundary Line.”
(Doc. 57). On closer inspection and with the benefit of the parties’ Responses to the
See Notice of Related Cases (Doc. 55).
The County moved to dismiss the claims in the state case and the matter is set for hearing
on July 7, 2021. See https://courtrecords.seminoleclerk.org/ (visited on June 1, 2021).
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Order to Show Cause, the Court found that abstention did not apply and there was
not a likelihood of inconsistent outcomes; therefore, the stay would be lifted and the
case reopened. On January 26, 2021, the Court granted the Joint Motion to Reopen
and Lift Stay (Doc. 56), set the case for trial, and reactivated the parties’ motions.
F. FHA Claim of River Cross
The remaining single claim 29 River Cross asserts in the case is that the
County’s actions in denying its application for an amendment to the Comprehensive
Plan and Future Land Use Map and “implementing and enforcing” the Boundary
Line “reinforces” or “perpetuates” a segregative effect in violation of the Fair
Housing Act, 42 U.S.C. §§ 3604 and 3613. (Doc. 30 at 8).30 Section 804(a) of the
FHA makes it unlawful “[t]o refuse to sell or rent after the making of a bona fide
offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable
River Cross asserts separate counts for money damages and injunctive relief under the
same provision of the FHA and the two counts are based on the same conduct. (Doc. 1 at 6-10).
River Cross specifically alleged in the Complaint that the County violated the FHA by
denying its application for: (1) an “amendment to Seminole County’s Comprehensive Plan to
amend the Rural Boundary Line to remove the Property from the East Rural Area”; (2) an
amendment to the County’s Future Land Use Map “to remove the Property from the Rural
Boundary Line,” and (3) a rezoning of the proposed site from Rural-5 to Planned Development
zoning, actions which “perpetuate a history of residential racial segregation in Seminole County”
and injure River Cross. (Doc. 1 ¶¶ 18, 20, 22, 29, 31, 33, 37, 38). To the extent River Cross argues
that the County did not rely on the Comprehensive Plan to deny its application and can only support
denial based on Section 5.2B of the Seminole County Home Rule Charter (see Doc. 45 at 6), the
argument is not well-taken, given River Cross’ allegations in the Complaint (Doc. 1).
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or deny, a dwelling to any person because of race, color, religion, sex, familial status,
or national origin.” 42 U.S.C. § 3604(a); see also 42 U.S.C. § 3613 (providing a
private right of action for an “aggrieved person” under the FHA).
STANDARDS OF REVIEW
A. Daubert and Federal Rule of Evidence 702
Rule 702 of the Federal Rules of Evidence controls the admission of expert
testimony. It allows an expert to testify in a case, provided that “scientific, technical,
or other specialized knowledge will assist the trier of fact.” Fed. R. Evid. 702.
Additionally, the expert must be qualified by “knowledge, skill, experience, training,
or education” and may testify to an opinion if “(1) the testimony is based upon
sufficient facts or data”‘ (2) “the testimony is the product of reliable principles and
methods”; and (3) “the witness has applied the principles and methods reliably to
the facts of the case.” Id.
Rule 702 compels courts to perform a “gatekeeping” function—specifically,
to determine whether the proffered expert testimony is reliable and relevant. Daubert
v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 n.7, 590-91 (1993). “Expert
evidence can be both powerful and quite misleading because of the [jury’s] difficulty
in evaluating it.” Id. at 595 (citation and internal quotation marks omitted). The
Eleventh Circuit has highlighted the importance of Daubert’s gatekeeping function,
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emphasizing that courts must carefully judge the intellectual rigor employed by an
expert because expert witnesses are free to opine without firsthand knowledge and
rely on inadmissible hearsay. United States v. Frazier, 387 F.3d 1244, 1260 (11th
Cir. 2004); see United States v. Ala. Power Co., 730 F.3d 1278, 1282 (11th Cir.
The Eleventh Circuit has set forth “a rigorous three-part inquiry” to be used
in determining the admissibility of expert testimony. Frazier, 387 F.3d at 1260. For
expert testimony to be admissible, a district court must determine that:
(1) the expert is qualified to testify competently regarding the matters
he intends to address; (2) the methodology by which the expert reaches
his conclusions is sufficiently reliable as determined by the sort of
inquiry mandated in Daubert; and (3) the testimony assists the trier of
fact, through the application of scientific, technical, or specialized
expertise, to understand the evidence or to determine a fact in issue.
Id. (quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th
Cir. 1998)); Rink v Cheminova, Inc., 400 F.3d 1286, 1291-92 (11th Cir. 2005). The
Supreme Court has emphasized that “[e]xpert testimony which does not relate to any
issue in the case is not relevant and, ergo, non-helpful” because “scientific validity
for one purpose is not necessarily scientific validity for other, unrelated purposes.”
Daubert, 509 U.S. at 591 (citations omitted). “Evidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action.” Fed. R. EvId. 401;
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McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004) (noting the testimony
must logically advance a material part of the case to be relevant and “there is no fit
where a large analytical leap must be made between the facts and the opinion.”). The
burden of laying the proper foundation for the admission of expert testimony rests
with the party offering the expert. McCorvey v. Baxter Healthcare Corp., 298 F.3d
1253, 1256 (11th Cir. 2005); Frazier, 387 F.3d at 1260. The admissibility of the
expert must be established by a preponderance of the evidence. McCorvey, 298 F.3d
B. Summary Judgment Standard
Summary judgment is appropriate when the moving party demonstrates “that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant must satisfy this
initial burden by “identifying those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, which
it believes demonstrate the absence of a genuine issue of material fact.” Norfolk S.
Ry. Co. v. Groves, 586 F.3d 1273, 1277 (11th Cir. 2009) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). In response, “a party opposing a properly
supported motion for summary judgment may not rest upon mere allegation or
denials of [its] pleading, but must set forth specific facts showing that there is a
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genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 256
(1986) (citation omitted). The movant is entitled to summary judgment where “the
nonmoving party has failed to make a sufficient showing on an essential element of
[its] case with respect to which [it] has the burden of proof.” Celotex, 477 U.S. at
323. In deciding whether to grant summary judgment, the Court resolves all
ambiguities and draws all permissible factual inferences in favor of the non-moving
party. Anderson, 477 U.S. at 255; Shotz v. City of Plantation, Fla., 344 F.3d 1161,
1164 (11th Cir. 2003) (citation omitted).
Federal courts cannot weigh credibility at the summary judgment stage. See
Feliciano v. City of Mia. Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (“Even if a
district court believes that the evidence presented by one side is of doubtful veracity,
it is not proper to grant summary judgment on the basis of credibility choices.”
(citation and internal quotation marks omitted)). Therefore, the Court will “make no
credibility determinations or choose between conflicting testimony, but instead
[will] accept [the non-moving party’s] version of the facts drawing all justifiable
inferences in [the non-movant’s] favor.” Burnette v. Taylor, 533 F.3d 1325, 1330
(11th Cir. 2008). Notwithstanding this inference, “[t]here is [still] no genuine issue
for trial unless the non-moving party establishes, through the record presented to the
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court, that it is able to prove evidence sufficient for a jury to return a verdict in its
favor.” Cohen v. United Am. Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir. 1996).
“Cross motions for summary judgment do not change the standard.” Perez–
Santiago v. Volusia Cnty., No. 6:08–cv–1868–Orl–28KRS, 2010 WL 917872, *2
(M.D. Fla. Mar. 11, 2010) (internal citations omitted). “‘Cross motions for summary
judgment are to be treated separately; the denial of one does not require the grant of
another.’” Id. (internal quotations and citations omitted). “Even where the parties
file cross motions pursuant to Rule 56, summary judgment is inappropriate if
disputes remain as to material facts.” Id.
Standing to Sue under the Fair Housing Act
The Court must first address whether River Cross has standing to assert an
FHA claim against the County for denial of its proposal to build “affordable
housing.” The County argues that, although River Cross claims that it would provide
15% of the units as “affordable housing,” River Cross concedes that approval from
Florida Housing Finance Corporation is not guaranteed; and they are unlikely to be
included as “affordable housing units” in the development because they would revert
to market rate if approval was not received from the Florida Housing Finance
Corporation within thirty days of receipt of the certificate of occupancy. The County
also argues that there was no expert or other evidence of the demographics of the
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people who would live in the proposed development to indicate their race. Thus, the
County argues, without any evidence that the River Cross Project would actually
alleviate a segregative effect, River Cross cannot sustain the lawsuit. (Doc. 35 at 21
(citing Hallmark Developers, 386 F. Supp. 2d at 1383)).31
Other courts have held that, under the express terms of the Fair Housing Act,
any person or entity, including a developer, “aggrieved” by an allegedly unlawful
practice is authorized to bring suit under the FHA. See, e.g., Hallmark Devs., Inc. v.
Fulton Cty., Georgia, 386 F. Supp. 2d 1369, 1381 (N.D. Ga. 2005) (citing 42
U.S.C.A. § 3610(a)(1)(A)), aff’d, 466 F.3d 1276 (11th Cir. 2006); see also Baytree
of Inverrary Realty Partners v. City of Lauderhill, 873 F.2d 1407, 1408–1409 (11th
Cir. 1989) (holding that non-minority developers had standing to assert their own
right to challenge allegedly racially motivated adverse zoning decisions by local
governmental officials under the FHA). The definition of “aggrieved person”
includes anyone who “claims to have been injured by a discriminatory housing
practice.” Id. (citing 42 U.S.C.A. § 3602(i)(1)). “Under long-established precedent,
standing under the Fair Housing Act is not limited by prudential concerns but is
Federal courts also have “an independent obligation to assure that standing exists.”
Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009); see City of Miami Gardens v. Wells
Fargo & Co., 931 F.3d 1274, 1283 (11th Cir. 2019)(affirming summary judgment where standing
to sustain a claim under the FHA was a contested issue and required evidence rather than
allegations to withstand summary judgment).
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satisfied by the minimum constitutional ‘case or controversy’ requirement of Article
III.” Id. (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114,
71 L.Ed.2d 214 (1982); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103
n. 9, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979)). A plaintiff need only show: (1) an actual
or threatened injury; (2) that is caused by or fairly can be traced to the defendant’s
challenged action; and (3) that is likely to be redressed by a favorable court decision.
Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1537 (11th Cir. 1994)(citing Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351
However, a developer or property owner will not have standing to sue under
the FHA if the developer alleges a purely economic injury without any specific plans
to build a development that will demonstrably house minority tenants. In Nasser v.
City of Homewood, the Eleventh Circuit considered the Fair Housing Act claims of
the owner of nine acres that were rezoned from multi-family to single-family
residential after it was incorporated into the city limits by an act of the state
legislature. 671 F.2d 432, 437–438 (11th Cir. 1982). The property owners had
previously contracted with a developer to construct a multi-family housing complex,
and the developer had “looked into the possibility of having the said real property
developed under some program supported by the Housing and Urban Development
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Department” with the intent to “make some units available to low- and moderateincome families through rent subsidies”; however, the plans did not progress beyond
the “inquiry stage.” Id. at 435. Because there was no indication that the previous
plans were viable three years later, at the time the property was rezoned by the city,
the Eleventh Circuit held that the property owner lacked standing under the FHA.
The court noted unrebutted testimony from a city commissioner that “at no time
during [the owner’s] several appearances before [the City] authorities, however, did
[he] state or suggest that his purpose . . . was to build a multi-family project for the
use and benefit of low income or minority groups. . . . [He] or his attorney
represented that they wished to build ‘an exclusive-high rent apartment complex of
the type and sort which would only appeal to the upper income bracket.” Id.32
The Eleventh Circuit also noted that there was no evidence that the multifamily project was “in any way affected by or related to racial or other minority
interests.” Id. The Court criticized the “apparent deficiency in the plaintiffs’
evidence,” and, more strongly, the plaintiffs’ “implicit assumption that ‘low and
moderate-income housing’ is synonymous with housing for minorities protected by
the Fair Housing Act” Id. (citing Warth v. Seldin, 422 U.S. 490, 494-95 & n. 5, 502
Regarding the latest proposal from River Cross sent to the County on April 1, 2021, for
1338 residential units and less commercial space, Mr. Dorworth said, “I think it will be a very
high-end and beautiful community. . . . But it will be a far cry from what we proposed before.”
Dorworth Pitches New Proposal for River Cross Property, ORLANDO SENTINEL, April 7, 2021.
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(1975)). Accordingly, the court found that the developer lacked standing under the
FHA because there was “a complete lack of showing” that there was a specific plan
to develop minority housing. Id. (“The plaintiffs do not suggest that any 1979
‘exclusive-high rent’ project had any connection to minority interests.”). The
Eleventh Circuit explained its decision on standing:
There is no indication that the [Supreme] Court intended to extend
standing, beyond the facts before it, to plaintiffs who show no more than
an economic interest which is not somehow affected by a racial interest.
There is no suggestion, either in the Act or its legislative history, that
Congress intended to entrust the enforcement of the Fair Housing Act
to such plaintiffs. . . . This does not mean that only non-economic
interests may be protected by the Act. See, e.g., Williams v. Miller, 460
F.Supp. 761 (N.D.Ill.1978), aff’d mem., 614 F.2d 775 (7th Cir. 1979);
cf. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24
L.Ed.2d 386 (1969) (standing to assert constitutional rights of third
parties). See generally Village of Arlington Heights v. Metropolitan
Housing Devel. Corp., 429 U.S. at 263, 97 S.Ct. at 562, 50 L.Ed.2d at
463. No economic interest justifying such treatment has been identified
or shown in this case. We therefore hold that the plaintiffs do not have
standing under s. 812 of the Fair Housing Act, 42 U.S.C. s. 3612.
Id. at 437-38 (emphasis added; citation omitted).
The County cites Hallmark Developers, Inc. v. Fulton County, Georgia, in
which the district court granted summary judgment on the developer’s FHA claim,
holding that the county’s denial of the zoning application did not have a segregative
effect because there was no evidence that minorities would move into the new
development, such as through wait-lists or other evidence of those seeking the
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housing. 386 F. Supp. 2d 1369, 1383 (N.D. Ga. 2005), aff’d, Hallmark Developers,
Inc. v. Fulton Cty., Ga., 466 F.3d 1276 (11th Cir. 2006). Thus, the effect on minority
representation of the proposed development would be “inherently speculative.” Id.
As the County points out, the evidence introduced by River Cross does not
include any information about the demographics of the individuals who would be
expected to move into the River Cross Project. Without evidence establishing that
minorities would reside in the River Cross Project, the County argues, River Cross
cannot state a prima facie case that the removal of the Property from the Rural Area
would increase the minority population in the area. As the Eleventh Circuit
explained in Nasser, the Court will not make the “implicit assumption that ‘low and
moderate-income housing’ is synonymous with housing for minorities protected by
the Fair Housing Act,” 671 F.2d at 435. This is especially true in light of the
County’s uncontroverted evidence that there is a lack of transportation and jobs near
the Project, and there is no evidence of the demand by minorities for affordable
housing in the isolated rural, eastern area of the County where the population is
In response, River Cross argues that Hallmark Development is distinguishable
because it was primarily about a disparate impact claim, and the segregative effect
claim failed because the area was predominately African American so the absence
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of the proposed development would have no “appreciable impact.” River Cross cites
two cases in which overwhelmingly white cities (at the 98%-99% level) were sued
for zoning denials perpetuating segregation when they blocked construction of lowcost housing in rigidly segregated areas. (Doc. 42 at 14 (citing United States v. City
of Black Jack, 508 F.2d 1179 (8th Cir. 1974) (98% white) and Kennedy Park Homes
Assoc., Inc. v. City of Lackawanna, 436 F.2d 108 (2d Cir. 1970) (98.9% of non-white
citizens lived in First Ward). River Cross argues that, because nothing else in the
County’s Rural Area offers the level of “intense development” proposed for its
Project, denial of the project impedes the ability to end racial segregation. River
Cross contends that “allowing for development will certainly alleviate the
segregative housing pattern, especially considering that the Property is within a tenmile radius of the University of Central Florida.” (Doc. 42 at 16).
River Cross further argues that a genuine issue of material fact exists as to
whether approval of the River Cross Project will alleviate the “segregated housing
pattern” in the County’s Rural Area based on Dr. Cowan’s statistical evidence
demonstrating that a segregated housing pattern exists between the Rural Area and
Urban Area, “when the only discernable difference between the two areas is the
County’s land use regulations”; thus, approval of the River Cross Project will bring
infrastructure and higher-density development to the Rural Area to alleviate the
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segregated housing pattern. In other words, River Cross argues that it is not required
to present any evidence to establish that minorities in particular will move to the
property simply because it can allegedly show that the population in the urban area
west of the Boundary Line is more diverse.
In Hallmark Developers, 466 F.3d at 1287, the Eleventh Circuit discussed
some of the leading segregative effect cases that River Cross relies on, all of which
did require evidence that there was a demand by minorities for the proposed housing,
either through a waiting list for affordable housing or a shortage of housing for the
minority population, before considering whether the municipalities’ denials
perpetuated segregation. See, e.g., Huntington Branch, NAACP v. Town of
Huntington, 844 F.2d 926, 929 (2d Cir.) (considering impact of housing shortage on
the “disproportionate percentage” of minorities on the waiting list who qualify for
federally subsidized housing), aff’d, 488 U.S. 15, 18 (1988) (per curiam); Arlington
Heights, 558 F.2d at 1288 (considering housing intended for those who qualified for
federal subsidies); City of Black Jack, 508 F.2d at 1186 (with regard to housing
intended for those within a certain income range, there “was ample proof that many
blacks would live in the development”).
In Arlington Heights, the Seventh Circuit concluded that construction of the
proposed development “would be a significant step toward integrating the
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community” and, because the proposed project would have to be racially integrated
in order to qualify for federal subsidies, the Village’s action in preventing the project
from being built had the effect of perpetuating segregation. Arlington Heights, 558
F.2d at 1288. The development’s racial make-up would reflect the income-eligible
population in the overall metropolitan area which was forty percent black. Id.33
In this case, River Cross has shown “no more than an economic interest”
which is not “somehow affected by a racial interest.” See Nasser, 671 F.2d at 435.
The overwhelming basis of the River Cross proposal is 1.5 million square feet of
commercial space, 870 single family homes and townhouses and 425 apartments—
all at market rates. The 75 “affordable” multi-family units (15% of 500 total) were
proposed at the last minute “for information only,” without any actual information
regarding the qualifying income levels or racial make-up of the residents to be
served, as the County staff noted. The River Cross “affordable housing” proposal in
this case is distinguishable from the developments in landmark segregative-effect
On remand in the case, the concurring judge noted the overwhelming percentage of
white residents was by design: “Arlington Heights is a community of substantial size . . .[yet]
housing there is presently almost totally confined to white persons. The substantial percentage of
minority persons in the whole metropolitan community and the fact that minority persons are
employed in Arlington Heights render it improbable that existing housing segregation there can
represent free choice among persons who might reasonably consider living there. Zoning is
appropriate for regulating the location of land use within a community. . . [but] it is not appropriate
for total exclusion.” Metropolitan Housing Development Corp. v. Village of Arlington Heights,
558 F.2d 1283, 1296 (7th Cir. 1977) (Fairchild, C.J., concurring).
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cases which unquestionably satisfied the “race-based” element of harm because
those plaintiffs proposed federally-subsidized projects that had racial integration as
a goal with specific criteria and objectives to accomplish it. See, e.g., Arlington
Heights, see also Doc. 35-15 Fishkind at ¶ 29 (opining that Dr. Cowan’s expert
opinion “is devoid of any information related to the income levels of the minorities
allegedly segregated from the rural area.”)).
Other courts have held that the FHA does not apply in cases in which the
plaintiffs allege damage arising out of a failed commercial venture—even if the
property itself fits the definition of a “dwelling” under the FHA—where they had no
intention of residing in the property and were not suing on behalf of protected class
members who would reside there. See, e.g., Shaikh v. City of Chicago, No. 00-C4235, 2001 WL 123784, at *4 (N.D. Ill. Feb. 13, 2001) (minority plaintiff had no
standing under FHA to sue for city’s actions opposing his purchase of apartment
building as an investment); Patel v. Holley House Motels, 483 F.Supp. 374, 381
(S.D. Ala. 1979) (holding that minority plaintiffs seeking to purchase motel had no
FHA claim because they sought to purchase the motel as a commercial venture and
did not intend to reside there); Weingarten Realty Investors v. Albertson’s, Inc., 66
F.Supp.2d 825, 849 (S.D. Tex. 1999) (FHA does not extend to sale of commercial
real estate). The same principle applies in this case where River Cross has not alleged
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any information about the race or national origin of the prospective occupants or
protected class who would occupy the 75 “affordable housing” units and—from the
perspective of a non-minority developer such as Plaintiff River Cross—the project
is nothing more than a commercial venture.
In addition, with no guarantee that the conditional “affordable housing” would
be approved by a third-party within thirty days after occupancy, and with no
information regarding the racial composition of the prospective residents who would
reside in the development, River Cross cannot show that the County’s denial of its
application perpetuates a segregative effect. See Ave. 6E Investments, LLC v. City of
Yuma, Ariz., No. 2:09-CV-00297 JWS, 2013 WL 2455928, at *7 (D. Ariz. June 5,
2013), rev’d on other grounds, 818 F.3d 493, 513 (9th Cir. 2016) (affirming district
court grant of summary judgment on segregative effect claim because the “statistics
showed that the denial of the zoning application would not have a significant
segregative effect on the neighborhood,” but reversing on disparate impact). Even if
River Cross had produced evidence of prospective occupants’ racial demographics
for the affordable housing units in other parts of Seminole County, tied to income
levels or waiting lists at similar housing, there is virtually no chance the Florida
Finance Corporation would approve the project. As Ms. Frederick, the County’s
affordable-housing specialist explained, the location of the River Cross project, far
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from transportation and jobs, would make it extremely unattractive and unlikely to
receive approval from the competitive process of the Florida Housing Finance
Corporation. (Doc. 35-2 at 46)(“a good score” for housing costs and transportation
costs “should not exceed 45 to 50” and the score for River Cross’ proposed site was
a high number “between 78 and 87 percent of any household in this area’s income”).
The end result, if the affordable housing application was not approved would be that
the 75 “affordable” units would then automatically “revert” to the market rate one
month after the project opened. Accordingly, River Cross lacks standing to assert a
claim under the Fair Housing Act.
D. Elements of the Segregative Effect Claim
Assuming arguendo that River Cross could show it has standing to sue under
the FHA—in spite of its failure to assert a “racial interest” or race-based connection
to the harm it alleges—River Cross’s segregative effect claim would fail because it
cannot show that the County’s enforcement of the Rural Boundary to prevent urban
sprawl actually “caused,” “reinforces,” or “perpetuates” a “segregative effect.”
In filing an FHA action, “[a] plaintiff can demonstrate a discriminatory effect
in two ways: it can demonstrate that [a defendant’s] decision has a segregative effect
or that it makes housing options significantly more restrictive for members of a
protected group than for persons outside that group.” Oviedo Town Center II, LLLP
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v. City of Oviedo, Fla., 759 F. App’x 828, 833 (11th Cir. 2018) (quoting Hallmark
Developers, Inc. v. Fulton Cty., Ga., 466 F.3d 1276, 1286 (11th Cir. 2006)).
Segregative-effect claims focus on how a challenged action affects residential
segregation in the local community, as opposed to “disparate impact” claims which
focus on the harm done to a racial minority or protected group. See Texas Dep’t of
Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 135 S.Ct.
2507, 192 L.Ed.2d 514 (2015).
Consistent with the case law since the 1970s, the United States Department of
Housing and Urban Development in 2013 formally codified segregative-effect
claims in which a policy or practice may have a discriminatory effect and “harm the
community generally by creating, increasing, reinforcing, or perpetuating segregated
housing patterns.” See Implementation of the Fair Housing Act’s Discriminatory
Effects Standard, 78 Fed. Reg. 11460-61, 11468-69 (Feb. 15, 2013) (promulgating
24 C.F.R. § 100.500(a)) (the “2013 HUD Regulation”) (noting that “the perpetuation
of segregation theory of liability has been utilized by private developers and others
to challenge practices that frustrated affordable housing development in nearly allwhite communities and thus has aided attempts to promote integration [citing
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The 2013 HUD Regulation incorporated the burden-shifting analysis applied
by the circuit courts considering FHA discriminatory-effect cases, including
segregative-effect cases in which municipalities were accused of using their landuse powers to block non-profit integrated housing developments in certain
neighborhoods, towns and villages which were virtually all-white communities. See,
e.g., Huntington, 844 F.2d at 937-41 (holding that New York City suburban town
violated the FHA by refusing to rezone neighborhood which was 98% white for
subsidized housing project, confining project to largely minority urban renewal
area); Arlington Hts., 558 F.2d at 1286-87, 1291 (holding that suburban village, 99%
white, in Chicago metropolitan area that had “a significant percentage of black
people” violated the FHA by denying zoning change for non-profit developer to
build subsidized apartments serving minority tenants); City of Black Jack, 508 F.2d
at 1188 (holding that adoption of zoning ordinance prohibiting construction of
affordable housing townhouses in 99% white suburban city outside St. Louis, which
was 41% black, violated FHA); see also Dews v. Town of Sunnyvale, 109 F. Supp.
2d 526, 567-68 (N.D. Tex. 2000) (holding that ban on apartments and less costly
single-family housing by small town, 97% white, in Dallas suburbs (2,228 residents)
“perpetuates segregation”); cf. Avenue 6E Investments, LLC v. City of Yuma, 818
F.3d 493, 494-96 (9th Cir. 2016) (affirming summary judgment on segregative- 59 -
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effect claim brought by developer of predominately Hispanic development to be
built near a “white-majority area” where Hispanics constituted 55% of population
and the white population had fallen from 75% to at most 65%, which showed that
Hispanics were integrating into the area).
Under the 2013 HUD Regulation, all discriminatory-effect cases apply a
three-step burden shifting analysis. 24 C.F.R. § 100.500(c) (2019). First, the plaintiff
has the initial burden of establishing a prima facie case by proving that “a challenged
practice caused or predictably will cause a discriminatory effect.” Id. One
commentator has described this step as (1) identifying a particular practice of the
defendant to challenge; (2) showing through statistical evidence that this practice
exacerbates segregation in the relevant community to a sufficiently large degree; and
(3) proving that the defendant’s challenged practice actually caused this segregative
effect. See Robert G. Schwemm, Segregative-Effect Claims Under the Fair Housing
Act, 20 N.Y.U. J. LEGIS. & PUB. POL’Y 709, 712-13 & n. 16 (2017) (citing
Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed.
Reg. 11,460, 11,468-69 (Feb. 15, 2013); Inclusive Cmtys., 135 S. Ct. at 2523-24);
cf. Oviedo Town Center, 759 F. App’x 828, 834 (“This theory of disparate impact
liability, however, would create substantial difficulties if applied too expansively. .
. [and] undeniably would overburden cities and developers.”).
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If the plaintiff proves a prima facie case under the 2013 HUD Regulation, the
burden shifts to the defendant to prove that its “challenged practice is necessary to
achieve one or more substantial, legitimate, nondiscriminatory interests.” Id. Finally,
if the defendant satisfies this burden, the plaintiff is required to prove that the
defendant’s interest in “the challenged practice could be served by another practice
that has a less discriminatory effect.” Id.
Thus, to survive summary judgment on a segregative effect claim based on
the 2013 HUD Regulation, a plaintiff must establish a prima facie case showing: 1)
a segregated housing pattern based on race within a specific community based on
statistics and 2) that defendant’s practice “caused” or “perpetuated” the segregation.
24 C.F.R. § 100.500(a)(2013 HUD Reg.); Implementation of the Fair Housing Act’s
Discriminatory Effects Standard, 78 FR 11460-01.34
Following the Supreme Court’s decision in Inclusive Communities, HUD began the
notice and comment process in 2017 to revise the 2013 HUD Regulation governing discriminatory
effect claims, 24 C.F.R. § 100.500, see 85 Fed. Reg. 60,289. The final version of the new regulation
was due to become effective on October 26, 2020. Id. However, on September 24, 2020, in
Massachusetts Fair Housing Center v. United States Department of Housing and Urban
Development, the District Court of Massachusetts entered a nationwide preliminary injunction to
postpone the effective date of the revised 2020 HUD Regulation. 496 F.Supp.3d 600 (D. Mass.
Oct. 25, 2020), appeal dismissed, No. 21-1003 (1st Cir. Feb. 18, 2021). Under the 2020 version of
the Regulation, “the defendant may establish that the plaintiff has failed to meet the burden of
proof to establish a discriminatory effects claim” by demonstrating the defendant’s policy “is
reasonably necessary to comply with . . . a federal, state, or local law; or controlling court opinions,
regulatory or administrative requirements, or government guidance.” See 85 Fed. Reg. 60,289.
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In 2015, the Supreme Court decided the case of Texas Department of Housing
and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519, 135
S.Ct. 2507, 192 L.Ed.2d 514 (2015), which modified the level of causation the
plaintiff is required to show. The thrust of the majority opinion was on the viability
of the “disparate impact” theory of liability, and the opinion made only a passing
reference to the segregative-effect theory, even though it cited with approval several
influential circuit court cases that had applied the segregative effect theory in the
context of discriminatory zoning rules in overwhelmingly white towns and
neighborhoods. The Court held:
Recognition of disparate-impact claims is consistent with the FHA’s
central purpose. The FHA, like Title VII and the ADEA, was enacted
to eradicate discriminatory practices within a sector of our Nation’s
economy. See 42 U.S.C. § 3601 (“It is the policy of the United States
to provide, within constitutional limitations, for fair housing throughout
the United States”); H.R. Rep., at 15 (explaining the FHA “provides a
clear national policy against discrimination in housing”).
These unlawful practices include zoning laws and other housing
restrictions that function unfairly to exclude minorities from certain
neighborhoods without any sufficient justification. Suits targeting such
practices reside at the heartland of disparate-impact liability. See, e.g.,
Huntington, 488 U.S., at 16–18, 109 S.Ct. 276 (invalidating zoning law
preventing construction of multifamily rental units); Black Jack, 508
F.2d at 1182–1188 (invalidating ordinance prohibiting construction of
new multifamily dwellings); Greater New Orleans Fair Housing
Action Center v. St. Bernard Parish, 641 F.Supp.2d 563, 569, 577–578
(E.D. La. 2009) (invalidating post-Hurricane Katrina ordinance
restricting the rental of housing units to only “‘blood relative[s]’” in an
area of the city that was 88.3% white and 7.6% black). . . . The
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availability of disparate-impact liability, furthermore, has allowed
private developers to vindicate the FHA’s objectives and to protect their
property rights by stopping municipalities from enforcing arbitrary and,
in practice, discriminatory ordinances barring the construction of
certain types of housing units. See, e.g., Huntington, supra, at 18, 109
S.Ct. 276. Recognition of disparate-impact liability under the FHA also
plays a role in uncovering discriminatory intent: It permits plaintiffs
to counteract unconscious prejudices and disguised animus that escape
easy classification as disparate treatment. In this way disparate-impact
liability may prevent segregated housing patterns that might otherwise
result from covert and illicit stereotyping.
But disparate-impact liability has always been properly limited in key
respects that avoid the serious constitutional questions that might arise
under the FHA, for instance, if such liability were imposed based solely
on a showing of a statistical disparity. Disparate-impact liability
mandates the “removal of artificial, arbitrary, and unnecessary
barriers,” not the displacement of valid governmental policies. Griggs,
supra, at 431, 91 S.Ct. 849. The FHA is not an instrument to force
housing authorities to reorder their priorities. Rather, the FHA aims to
ensure that those priorities can be achieved without arbitrarily creating
discriminatory effects or perpetuating segregation.
Inclusive Cmtys., 135 S.Ct. at 2521-22 (emphasis added). While the Supreme
Court’s decision did not rely on giving deference to HUD’s 2013 regulation, it did
cite the 2013 HUD Regulation and HUD’s commentary on it with apparent approval
several times, as well as pointing to the disparate impact theory’s “long provenance.”
See Schwemm, supra, at 728 (citing Inclusive Cmtys., 135 S. Ct. at 2514-15, 2522,
2323). “All of these points support not only the disparate-impact theory, but the
segregative-effect theory as well.” Id.
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Equally applicable to segregative effect and disparate impact claims is the
language in Inclusive Communities setting “safeguards” for discriminatory-effect
claims to protect potential defendants against “abusive” claims. An “important and
appropriate means of ensuring” that disparate-impact liability is “properly limited”
is to give the authorizing body the opportunity to explain “the valid interest served
by their policies.”35 Id. at 2522. The Court explained the importance of specifically
allowing zoning officials the latitude to make decisions affecting a community’s
“quality of life”:
It would be paradoxical to construe the FHA to impose onerous costs
on actors who encourage revitalizing dilapidated housing in our
Nation’s cities merely because some other priority might seem
preferable. Entrepreneurs must be given latitude to consider market
factors. Zoning officials, moreover, must often make decisions based
on a mix of factors, both objective (such as cost and traffic patterns)
and, at least to some extent, subjective (such as preserving historic
architecture). These factors contribute to a community’s quality of life
and are legitimate concerns for housing authorities. The FHA does not
decree a particular vision of urban development; and it does not put
housing authorities and private developers in a double bind of liability,
subject to suit whether they choose to rejuvenate a city core or to
promote new low-income housing in suburban communities. As HUD
itself recognized in its recent rulemaking, disparate-impact liability
The Supreme Court noted that the Title VII analogy “may not transfer exactly to the
fair-housing context, but the comparison suffices for present purposes.” Inclusive Communities,
135 S.Ct. at 2523. It transfers even less so to the segregative-effect aspect of a FHA claim. See
Schwemm, supra, at 714 (“[U]nlike disparate-impact, the segregative-effect theory has no clear
analog in Title VII law”); id. at 736 (“[T]he issue of what, if anything, the segregative-effect theory
adds to potential FHA liability remains open for future litigation.”).
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“does not mandate that affordable housing be located in neighborhoods
with any particular characteristic.” 78 Fed.Reg. 11476.
In a similar vein, a disparate-impact claim that relies on a statistical
disparity must fail if the plaintiff cannot point to a defendant’s policy
or policies causing that disparity. A robust causality requirement
ensures that “[r]acial imbalance . . . does not, without more, establish a
prima facie case of disparate impact” and thus protects defendants from
being held liable for racial disparities they did not create. Wards Cove
Packing Co. v. Atonio, 490 U.S. 642, 653, 109 S.Ct. 2115, 104 L.Ed.2d
733 (1989), superseded by statute on other grounds, 42 U.S.C. §
2000e–2(k). Without adequate safeguards at the prima facie stage,
disparate-impact liability might cause race to be used and considered in
a pervasive way and “would almost inexorably lead” governmental or
private entities to use “numerical quotas,” and serious constitutional
questions then could arise. 490 U.S. at 653, 109 S.Ct. 2115.
The litigation at issue here provides an example. From the standpoint
of determining advantage or disadvantage to racial minorities, it seems
difficult to say as a general matter that a decision to build low-income
housing in a blighted inner-city neighborhood instead of a suburb is
discriminatory, or vice versa. If those sorts of judgments are subject to
challenge without adequate safeguards, then there is a danger that
potential defendants may adopt racial quotas—a circumstance that
itself raises serious constitutional concerns. . . . A plaintiff who fails . .
. produce statistical evidence demonstrating a causal connection cannot
make out a prima facie case of disparate impact.
Id. at 2523. The Supreme Court further cautioned that the “safeguard” of requiring
a plaintiff to produce statistical evidence demonstrating a causal connection is
“necessary to protect potential defendants” against abusive claims lest the “specter
of litigation” prevent governmental entities “from achieving legitimate objectives,
such as ensuring compliance with health and safety codes.” Id. Justice Kennedy, in
the penultimate paragraph, discusses the FHA’s role “in our Nation’s continuing
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struggle against racial isolation [and in] striving to achieve our ‘historic commitment
to creating an integrated society”‘ and acknowledged that “many cities have become
more diverse” since the passage of the FHA in 1968, yet the FHA has a “continuing
role in moving the Nation toward a more integrated society.” Id. at 2525-26.
The Fifth Circuit more recently applied the Supreme Court’s “safeguards
incorporate[d] into the burden-shifting framework” to a non-profit group’s
segregative effect claim against a private landlord who refused to participate in a
voluntary HUD-subsidized voucher program. Inclusive Cmtys. Project, Inc. v.
Lincoln Prop. Co., 920 F.3d 890 (5th Cir. 2019). The court affirmed dismissal of the
plaintiff’s FHA claims, finding the claims did not satisfy the Supreme Court’s
burden-shifting analysis from Inclusive Communities, and had failed to detail how
the no-voucher policy “caused the racial disparity” across census tracts. Id. at 903,
EXPERT TESTIMONY AND OPINIONS
The County moves to exclude the opinions and testimony of Dr. Charles D.
Cowan, the expert witness for River Cross, arguing that he should not be permitted
to testify about whether the implementation and enforcement of the Rural Boundary
Line perpetuates a segregative effect, based upon Daubert and the requirements of
Federal Rule of Evidence 702.
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The Cowan Rebuttal Report, for the first time, discusses segregative effect—
in response to the Report of the County’s expert, Dr. Fishkind, who opined that Dr.
Cowan’s (adopted) Initial Report 36 “fails to prove that the implementation and
enforcement of the Boundary Line has had a segregative effect on minorities.” (Doc.
34-4 at 2). Dr. Cowan’s Rebuttal Report contained three specific findings: 1) while
both the rural areas and urban areas in Seminole County were becoming more
diverse (that is, they had proportionately fewer whites than minorities over time),
the change is faster in the urban areas; 2) a causation analysis is not necessary; and
3) an analysis relating to whether the relief sought by River Cross would ameliorate
the segregative effect is not necessary. (Id. at 3).
The County contends that Dr. Cowan’s opinions fail to meet the standard
required by Daubert because he fails to provide sufficient statistics to show that a
segregative effect on minorities exists due to the Boundary Line or, if it does, that
any policies or decisions of the County are causing it. (Doc. 34). Dr. Cowan’s
testimony should be excluded, the County argues, because it has no probative value
and will only confuse the jury since he admits that he cannot provide an opinion on
Dr. Stephanie Boone drafted the initial report, entitled “Rural Boundary Impact Report,”
for Analytic Focus, LLC which Dr. Cowan adopted in its entirety and affirmed he “would not
deviate from” its findings and conclusions. (Doc. 34-2; Doc. 36-7 & 52-1 (same unredacted copies
of the “Initial Report”); Doc. 34-5 (Cowan Dep.). Dr. Cowan personally prepared the Rebuttal
Report. (Doc. 34-4 ; see Doc. 36-4 (Am. Discl. Expert Rep.)).
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causation, and the statistical evidence on which he opines is not “segregation,” but
merely differences in the rates that the minority populations are changing the urban
and rural areas. The County argues that such evidence will not assist the trier of fact
in determining whether the County’s decision “reinforces” or “perpetuates”
River Cross argues that Dr. Cowan is an expert who is qualified to perform
statistical analysis and he should be permitted to testify that a “segregated housing
pattern exists” in the rural area,37 which will assist the trier of fact in “determin[ing]
whether the Rural Boundary Line, the County’s denial of River Cross’ application,
and/or some other factor is perpetuating the segregated housing.” In his report, Dr.
Cowan concedes that the rural area has become “more diverse over time,”38 and less
segregated. He concludes, however, that “the Boundary Line appears to slow the
growth of minority populations in the rural areas.” (Id. at 6). At his deposition, Dr.
Cowan testified that he defines “segregative effect” as “fewer of one group than
another,” or that “there’s different percentages [of minorities] on each side of [the
Rural Boundary Line] and that they are growing or not growing.” (Doc. 34-5 at 87,
River Cross argues ‘the precise relief requested’ by the County is not the exclusion of
Dr. Cowan’s testimony related to the existence of a segregated housing pattern in the Rural Area.
(Doc. 41 at 4). In truth, the County seeks to bar all of Dr. Cowan’s testimony as not relevant to
the issue of causation. (Doc. 34).
(Doc. 34-4 at 12).
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163). Dr. Cowan agreed that he “is not trying to say that something is causing” there
to be “different percentages” of races on each side. (Id. at 163). Dr. Cowan testified
that he “never offered an opinion on causation and was never asked to do so.” (Id. at
The Court has reviewed Dr. Cowan’s deposition (Doc. 34-5), his Declaration
(Doc. 34-2, 36-4), the adopted Rural Boundary Initial Report for Seminole County
(the unredacted “Initial Report”; Doc. 36-7 & 52-1), and his Rebuttal Report dated
September 26, 2019 (Doc. 34-4) in order to determine whether his expert testimony
meets the requirements set forth by Daubert and Rule 702 by a preponderance of the
evidence. The Court addresses the Motion, taking up each argument in turn.
Dr. Cowan is well-qualified as a statistician, and the County does not
challenge his qualifications as a statistician generally. Instead, the County contends
that Dr. Cowan’s testimony is inadmissible expert testimony under Rule 702 because
he has no knowledge or experience concerning the Seminole County policies that he
has opined “perpetuate segregation.” River Cross argues that it is not offering Dr.
Cowan as an expert on the County’s land use policies or entitlement process, but as
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an expert in statistics to demonstrate with statistical analysis that a segregated
housing pattern exists in the Rural Area.39
In addition to other positions in federal government work and academia, Dr.
Cowan served as Chief Statistician for the Resolution Trust Corporation, then the
FDIC, as well as Director of Quantitative Methods for Pricewaterhouse Coopers
before starting his own firm; he has a Ph.D. in mathematical statistics. (Doc. 34-5 at
12, 14). He served for 12 years at the U.S. Bureau of the Census. (Doc. 34-4 at 4).
Dr. Cowan is qualified to testify as a statistician about his statistical analysis
regarding the differences in the housing patterns that exist in the Rural Area and the
Urban Area based on Census data (or equivalent well-accepted population
As other courts have noted, accepting an expert’s qualification to testify
competently does not guarantee that his testimony is admissible. See Oliver v. City
of Orlando, No. 6:06-cv-1671-Orl-28DAB, 2011 WL 2174010 (M.D. Fla. May 31,
2011), aff’d, F. App’x 815 (11th Cir. 2012). Daubert and Rule 702 require that courts
apply their gatekeeping function to each expert to determine if the testimony is
To the extent that River Cross argues that Dr. Cowan is “qualified” to testify specifically
that “the Rural Boundary Line is perpetuating that segregated housing pattern” (Doc. 41 at 9) or
the cause of the differences in the housing patterns, that relates to methodology and is addressed
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scientifically valid and whether the reasoning or methodology can be applied to the
facts at issue. Id. (citing Daubert, 509 U.S. at 592).
The County’s arguments about Dr. Cowan’s qualifications essentially overlap
with its arguments criticizing his methodology and deductions. The County points
to Dr. Cowan’s opinions concluding that it is “not the [Boundary] line itself leading
to segregation, but rather policies that are enforced differentially in the urban and
rural divisions of the county [which] would continue the segregative effects.” (Doc.
34-4 at 3). The County argues that this opinion is inadmissible “conjecture and
speculation.” The County further argues that Dr. Cowan cannot testify as an expert
on whether the County’s denial of the River Cross application to amend the Rural
Boundary Line has a discriminatory effect perpetuating segregation because he has
admitted that he does not know what the Seminole County policies are related to the
Boundary Line and he has no knowledge or experience related to the entitlement
process or land development. (Doc. 34-5 at 34, 37-38, 176). Given this admitted lack
of expertise, to the extent Dr. Cowan attempts to offer an opinion regarding the effect
of differing Seminole County policies on segregation in the community, the County
argues, he should be excluded from testifying since he does not know what Seminole
County’s policies are. Additionally, the County points out that, although Dr. Cowan
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asked for information from his client regarding the County’s “economic” or
“business” justifications for the County’s actions, River Cross did not provide that
information to him. (Id. at 185, 187).
The County also argues that Dr. Cowan’s testimony should be excluded
because the methodology he used has not been peer reviewed, published, tested or
verified and his conclusions are not generally accepted in the relevant community.
The County argues that, whether there are differences in the minority populations
and the rate of change has no probative value without an analysis of why it occurred.
Thus, the County contends, Dr. Cowan’s testimony fails because the analysis of
segregative effect requires a “causation” analysis that he did not perform as part of
his statistical analysis and admission of his opinions would be highly prejudicial if
he does not provide any substantive relevant information.
River Cross readily admits that Dr. Cowan is not qualified as an expert on
land use policies. River Cross also concedes that Dr. Cowan does not intend to opine
about the “causation” of the segregative effect. (Doc. 41 at 9). Rather, River Cross
argues that Dr. Cowan’s opinions, in the initial Report and his testimony, address
only “the segregated housing pattern” existing in the County’s Rural Area “through
statistical analysis,” which shows that fewer minorities lived in the Rural Area than
in the Urban Area as of 2016. (Id. at 7 (citing Doc. 36-7 at 10 (T. 1), 17 (T. 3b)).
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River Cross argues that it is only required to produce evidence of a segregated
housing pattern—in this case, a statistical analysis of the Census Data demonstrating
that fewer minorities live in the Rural Area relative to the Urban Area—which Dr.
Cowan’s Initial Report and testimony show. (Doc. 41 at 8). River Cross contends
that it need not show evidence of “causation” of the segregative effect, only that a
segregated housing pattern in the Rural Area exists because it is up to the trier of
fact to determine whether the Boundary Line, or the County’s denial of the River
Cross application, or “some other factor perpetuates” the segregated housing pattern
in the Rural Area. River Cross admits that Dr. Cowan “did not consider causation
specifically” but argues that “his methodology still demonstrates a causal
relationship between the Rural Boundary Line and the segregated housing pattern in
the County’s Rural Area.”40 (Id. at 10). River Cross explains that Dr. Cowan applied
statistics, observed the results, and drew a conclusion that was reasonable, such that
if the County wishes to discredit Dr. Cowan for not performing a “causation
analysis,” the County should address it on cross-examination. River Cross argues
that the statistical analysis in both of Dr. Cowan’s Reports comparing the
Although River Cross relies on the differences of the racial composition of residents
living within a one to five miles of the Boundary Line to argue there is a “segregative effect,” Dr.
Cowan testified that this data from Dr. Boone in the initial report did not have any impact on his
opinion of segregative effect because he “believed that they are relatively small distances.” (Doc.
34-5 at 122).
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demographics and the different results demonstrate that there is a smaller population
of minorities residing in the Rural Area, and diversity in the Rural Area has increased
at a slower rate than in the Urban Area. (Doc. No. 36-7, at 10 (T. 1), 17 (T. 3b); Doc.
No. 34-4 ¶¶ 10-18). Therefore, River Cross argues, Dr. Cowan’s conclusion
regarding the County’s denial of its application and the Rural Boundary Line
perpetuating segregation are not “impermissible leaps in logic.”
However, in order to reach its conclusion that “the Rural Boundary Line is
predictably reinforcing and/or perpetuating the segregated housing pattern existing
in the County’s Rural Area,” River Cross erroneously argues that “the only
meaningful difference between” the Rural and Urban Areas is “an arbitrary rural
boundary line dividing the two areas, and allowing for development on one side and
precluding development” on the other side. (Doc. 41 at 10). Despite River Cross’
eponymous name, it ignores the fact that the significant and essential difference in
the two areas in this case is the Econ River Basin, Econ River Wilderness Preserve,
and the complete dearth of any existing or planned infrastructure, commercial
development, transportation, and limited roads in the vast majority of the Rural Area,
which distinguishes it greatly from the Urban Area and makes the two areas far from
“interchangeable.” Nearly two-thirds of the Rural Area is comprised of parks and
conservation land (38%), agricultural and timber land (25%), and lake or swamp
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land (3%). 41 The population in the Rural Area is only 2% of the County’s total
residents versus the 98% of County residents who live in the Urban Area. (See Doc.
35-15 at 10 (for 2018), Doc. 36-6 at 13).
Dr. Cowan’s testimony and opinions do not address the central issue in the
case, whether the Boundary Line and the denial of the River Cross application
perpetuate or reinforce a segregative effect. Dr. Cowan admitted as to the census
data that there was “a problem in allocation the block group population counts to
rural and [urban] classes” because a good deal of the statistical evidence on which
he relied from the Initial Report was based on seven of ten census block groups and
five census “tracts,” which, in the rural area, are “few and very large” so that they
“will likely go over the boundary [line]” and encompass both the urban and rural
areas. (Doc. 34-5 at 115). All of the census tracts were cut through by the Boundary
Line. (Id.). Therefore, a representative percentage of minority and non-minority
populations had to be “weighted” by the statistician and assigned to each side
without specifically knowing the racial composition of the residents because the
“Line” could go through the census block. (Id. at 118). He explained that “a
particular area is designated as, let’s say, 60 percent urban, 40 percent rural. . . .
Three percent of the Rural Area also contained “municipal” land and “utilities” in
addition to “lake/swamp.” (Doc. 35-15 ¶ 22).
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[T]hen you’ve got counts of numbers and people who are in this area but you don’t
know which side [of the Boundary Line] they go on. . . . So to allocate the counts of
the numbers of people, you take 60 percent who would be in the east side and 40
percent who’d be on the west side -- that’s the weighting [his employee, Dr. Boone
is] talking about -- to get counts of the numbers of individuals in each of the different
groupings we’ve been discussing.” (Id. at 118). Dr. Cowan acknowledged that
additional “variability” or error could be built into the distribution of race because
of the “weighting” on either side of the Boundary Line across the precincts, but “one
would think in general, it’s unlikely and you hope it all washes out [on average]. . .
since you are doing a lot of areas.” (Id. at 119 (emphasis added)).
While Census data is typically acceptable in FHA cases, in this case the
methodology Dr. Cowan used (or adopted from Dr. Boone) to determine “diversity”
in the Rural Area is not reliable because it admittedly contained “variability” or error
he “hope[d] washes out” in the end.
C. Assist the Trier of Fact
The County argues Dr. Cowan’s testimony will not assist the trier of fact in
understanding the evidence or in determining the facts in issue because his offered
opinions do not “fit” the case and should be excluded. (Doc. 34 at 16 (citing Phillips
v. Am. Honda Motor Co., Inc., 238 F. App’x 537, 540 n.2 (11th Cir. 2007) (finding
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“when expert’s data is not directly relevant to the matter at issue in a case, the
expert’s testimony does not assist the trier of fact and is therefore inadmissible under
Daubert”)). River Cross argues that Dr. Cowan’s testimony will assist the trier of
fact because his statistical analysis shows a segregated housing pattern existing in
the County’s Rural Area which is relevant to the case and will assist the trier of fact
in determining the factual issues.
However, as the County points out, Dr. Cowan admits he is not offering an
opinion regarding whether there is a “segregative effect” perpetuated by the Rural
Boundary Line or denial of the River Cross application. Dr. Cowan testified that
when he states that he sees a “segregative effect,” he means he sees a “difference,”
but not anything that he can say was caused or perpetuated by the County:
Q. And to be clear, you’re not saying that any action or inaction of the
county in this case has a segregative effect?
A. What I’m saying is, is that I see a segregative effect, I don’t know if
actions by the County are causing it and that’s as far as I can go.
(Doc. 34-5 at 164). Dr. Cowan also testified to “the relative diversity between the
east and west sides [of the Boundary Line] and the pace at which they’re
diversifying.” (Id. at 168-69).
The County argues that the only testimony required by an expert is whether
there is a segregative effect caused or perpetuated by Seminole County’s denial of
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the River Cross application to rezone the property, thus, the disparities in Rural and
Urban Area “diversity” that are the basis of Dr. Cowan’s opinions have no
relationship to the merits of this case because they could be explained by multiple
other factors that he did not consider. Throughout his report, Dr. Cowan used the
term “segregative effect,” even though he was analyzing “diversity” and he admitted
he did not analyze causation and perpetuation. (Doc. 34-5 at 29, 170). In addition,
Dr. Cowan failed to perform any analysis regarding the demographics of people who
would potentially live within the River Cross development. Therefore, the County
argues that his testimony will be prejudicial and confusing to the trier of fact.
River Cross argues that Dr. Cowan’s testimony is directly relevant to and
“fits” the issues of this case. River Cross also contends that the distinction between
“diversity” and “segregation” is one “without a difference” because his analysis of
lack of diversity is directly relevant to whether “segregation” or what River Cross
defines as “the systematic lack of diversity,” has occurred. River Cross contends that
Dr. Cowan need not analyze who would potentially live in the River Cross
development because he can testify about the segregated housing pattern.
In Inclusive Communities, the Supreme Court held that a violation of the FHA
may be based on a claim of discriminatory effect by applying the segregative effect
theory; however, the claim cannot be “based solely on a showing of a statistical
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disparity” and “must fail if the plaintiff cannot point to a defendant’s policy or
policies causing that disparity.” Inclusive Cmtys., 135 S.Ct. at 2523. Although River
Cross argues that Dr. Cowan’s testimony of differing levels of “diversity” in the
Urban and Rural Areas supports “segregative effect,” his analysis is just a “showing
of statistical disparity” and is not evidence of a “systematic” effort to exclude
minorities through zoning decisions such as has been discussed in other segregative
effects cases. See, e.g., Huntington, 488 U.S. at 16–18, 109 S.Ct. 276; Black Jack,
508 F.2d at 1182–1188 (cited with approval in Inclusive Cmtys.). Additionally, it is
undisputed that Dr. Cowan did not perform any analysis regarding the demographics
of residents who would potentially live within the River Cross development, and
without such demographic evidence that any minorities would reside in the
development, River Cross cannot argue that the County’s denial of the its application
Dr. Cowan’s testimony and opinions about the “segregative effect” will not
assist the trier of fact and will be excluded.
ANALYSIS OF THE SEGREGATIVE EFFECT CLAIM
A. Perpetuates or Reinforces Segregation
The County argues that, based upon the 2013 HUD Regulation, all
discriminatory-effect claims require causation. See 24 C.F.R. § 100.500(c)(1)
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(requiring that a “challenged practice caused or predictably will cause a
discriminatory effect”). The County argues that even though Inclusive Communities
focused on disparate impact claims, the opinion clearly detailed the limits the
Supreme Court believes must be placed on the FHA, and the “robust causality”
requirement ensures that racial imbalance alone does not, without more, establish a
prima facie case of discriminatory effect and “thus protects defendants from being
held liable for racial disparities they did not create.” Id. at 2523. Therefore, the
County argues, a plaintiff’s failure to produce statistical evidence demonstrating a
“causal connection” is fatal to a prima facie case. (Doc. 35 at 19). River Cross argues
that it does not need to show any causation in this case, only that the Boundary Line
“reinforces” or “perpetuates” segregation.
The Supreme Court’s admonition regarding the adequate safeguards that must
be in place to prevent zoning bodies from abandoning legitimate objectives for fear
of litigation is instructive. The thrust of the Supreme Court’s Inclusive Communities
decision is that a violation of the FHA may be based on a claim of discriminatory
effect; however, it cannot be “based solely on a showing of a statistical disparity”
and “must fail if the plaintiff cannot point to a defendant’s policy or policies causing
that disparity,” which, in the context of disparate impact, requires a “robust causality
requirement.” Inclusive Cmtys., 135 S.Ct. at 2523. In the context of segregative
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effect claims, the leading circuit court cases have found the action or decision must
“significantly” perpetuate segregation. See Huntington, 844 F.2d at 937-38 (holding
restriction of low-income multifamily housing to a minority area and its refusal to
allow the proposed project in a 99%-white area significantly perpetuated
segregation); Arlington Heights, 558 F.2d at 1291 (holding that the construction of
the housing would be a significant step toward integrating the community where
“[t]he Village remains overwhelmingly white at the present time”); see also Davis
v. New York City Hous. Auth., 166 F.3d 432, 438 (2d Cir. 1999) (holding that the
“proper standard to be applied” on remand was whether the proposed use of a
preference for working families in city’s subsidized housing would “significantly
perpetuate segregation” where district court had found a history of past segregation
existed) (citing Huntington, 844 F.2d at 938)); Schwemm, supra, at 728-29 (“As
with the principles discussed” in Inclusive Communities regarding disparate impact,
“these ‘cautionary standards’ for FHA-impact claims might reflect more broadly the
Court’s concerns with non-intent claims under the FHA and thus apply as well to the
segregative-effect theory of liability.”).
“To make a case for segregative effect, the plaintiff must have a  thoroughly
developed record that shows such indicia of segregation as localized concentrations
of minority groups within the municipality; comparisons of the racial composition
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of the areas inside and outside the municipality, showing that minority groups have
been excluded from the municipality; and historical practices of segregation, the
effects of which linger in the present.” Housing Inv., Inc. v. City of Clanton, 68 F.
Supp. 2d 1287, 1299 (M.D. Ala. 1999) (citing Huntington v. Huntington Branch
NAACP, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988) (noting that most of
the black residents of the town, who comprised 4% of its population, lived clustered
in six census tracts, and three quarters of the remaining census tracts, like the
prospective site for low-income housing development, were 99% white)). Without
such a showing of historical practices of segregation or a localized concentration,
“[t]he statistic that the population . . . . is 80.5% white and 19.5% nonwhite only
repeats the otherwise unsurprising fact that racial minorities are minorities. Without
more, this observation does little to support the claim of a segregative effect.”
Housing Inv., Inc. v. City of Clanton, 68 F. Supp. 2d 1287, 1299 (M.D. Ala. 1999).
Even if the Court were to consider the expert opinion of Dr. Cowan, River
Cross would not state a prima facie case because River Cross does not attempt to
make a showing of “historical practices of segregation” or comparisons of racial
composition showing intentional exclusions or that the County’s “challenged
practice caused this segregative effect.”42 The 2013 HUD regulation authorizes such
Schwemm, supra, at 712 & n.16.
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a segregative effect claim when a challenged practice “perpetuates” or “reinforces”
segregated housing patterns. The definition of “perpetuate” is to “cause to last
indefinitely.” Id. https://merriam-webster.com (visited on May 24, 2021). Similarly,
the meaning of “reinforce” is “to make stronger or more pronounced.” Id. Inclusion
of these verbs in the 2013 HUD Regulation denotes an increase or strengthening of
segregation in order to establish liability for a segregative effect violation.
Dr. Cowan specifically does not contend that the Boundary Line “caused” the
segregative effect in the Rural Area, and he concedes that “diversity” or integration
has increased in the Rural Area. The only evidence River Cross can point to is the
Census data that River Cross admits shows that the Rural Area is integrating and
becoming more diverse, albeit at a slower rate than the Urban Area, which contains
98% of the County’s population.
Based on the 2010 Census data, Seminole County as a whole was 78% white
and, thus, 22% non-white.43 In comparison, the Rural Area—with only two percent
The 2000 and 2010 Census figures are utilized in the Fishkind Report. (Doc. 35-15 at
10). Fishkind used (un-weighted) Census data “at the census tract level for the rural areas of the
County. While the rural census tracts do not exactly match the County’s rural areas, they produce
the best approximation for the County’s rural area.” (Id. ¶ 31). Since River Cross has failed to
define any protected group or specific minority group for comparison (see Initial Report, Doc. 521), and most segregative effect cases describe the comparison as between the percentage of white
residents and non-white residents described as Black or African American, as in Black Jack or
Arlington Heights, or Hispanic, as in City of Yuma, the Court’s comparison will look at white
(alone) residents and “non-white” residents of all ethnic or racial descriptions. The percentages of
different racial groups as provided by the experts do not add up to 100% because the category of
“Hispanic or Latino Origin” is for residents “of any race” according to census data and individuals
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of the County’s population—in 2010 was 90% white and 10% non-white.44 Eight
years later at the time River Cross filed this lawsuit, based on 2018 ESRI figures,
both Seminole County as a whole and the Rural Area had become less segregated
and more integrated since 2000 (before implementation of the Boundary Line). The
percentage of white residents in Seminole County overall has fallen to 75%, even as
the overall population is estimated to have increased to 464,616 in 2018. (Doc. 3515 at 10). The Rural Area has also become more integrated as the percentage of
white residents in the Rural Area has decreased to 87% and the percentage of nonwhite residents has increased to 13% despite implementation of the Boundary Line
in 2004. (Id.).45
Because the Rural Area has diversified at a slower rate than the County
overall, Dr. Cowan opines that the “formalization” of the Boundary Line
“perpetuates a segregative effect.” The basis for Dr. Cowan’s opinion is that “[t]he
diversity in the rural areas has taken place at a much slower rate than in the urban
areas, causing the difference in terms of diversity to widen over time.” (Id. ¶ 16).
of “two or more races” fit into overlapping categories. See http://www.census.gov/quickfacts.
According to the Fishkind Report, based on the 2010 census data: 10,082 white residents
comprised 89.7% of the Rural population. See Doc. 35-15 at 10.
The Fishkind Report cites data from the 2018 Estimate from Environmental Systems
Research Institute (“ESRI”) which shows (based on geographic information system mapping and
data analytics measuring the racial/ethnic composition of the population): Within the Rural Service
Area of the County, 10,560 white residents comprised 87.4% of the Rural Area population, thus,
100% of the overall population for the area is 12,082. (Doc. 35-15 at 10).
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But “both communities became more diverse over time,” although “the urban areas
of Seminole County experienced significant positive population growth over the past
decades. The rural areas experienced negative growth.” He concludes that “having
a residence in the rural area became less feasible than having a residence in the urban
area due to limits on land use and reduction46 in the availability of certain urban
services.” (Id. ¶ 18). “By comparing these percentage drops [in livability], I find that
minorities were less likely to live in the rural areas in 2010.” (Id. ¶ 21). However, as
Dr. Cowan acknowledges, white residents were also less likely to live in the Rural
Area. “[F]rom year 2000 to 2010, the total population in the urban areas grew by
22% while the population in the rural areas dropped by 11.5%.” (Id. at 9 (T. 3)).
According to Dr. Fishkind’s Report based on Census data, from 2000 to 2018,
“the absolute level of white population in the Rural Area declined from 11,822 in
2000 to 10,560 by 2018. By contrast, the black population increased from 444 in
2000 to 550 by 2018.” (Doc. 35-15 ¶ 36 (Fishkind)). The Fishkind Report shows that
the trend is also true for other minority groups, in that the Asian and Hispanic
populations nearly doubled from (collectively) from 875 in 2000 to 1,561 in 2018,
There is no evidence of a “reduction” in available services and Dr. Cowan’s basis for
this opinion is not explained in his Rebuttal Report. (Doc. 34-4).
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even while the total population in the Rural Area was falling from 12,794 in 2000 to
12,082 in 2018. (Id. at 10).
Because it is undisputed that the Rural Area has become more diverse albeit
more slowly than the substantially more populated Urban Area, River Cross cannot
show the County’s enforcement of the Boundary Line or denial of its application
“perpetuates” or “reinforces” segregation. See, e.g., Avenue 6E Investments, LLC v.
City of Yuma, 818 F.3d 493, 494-96 (9th Cir. 2016) (affirming summary judgment
on segregative-effect claim brought by developer for city’s denial of proposal in
southeastern area of city (where white population had fallen from 75% in 1990 to
65% in 2010, near the time of the rezoning which showed that Hispanics were
integrating into the area47)); In re Malone, 592 F. Supp. 1135, 1167 (E.D. Mo. 1984)
(rejecting segregative-effect claim because plaintiff’s blocked development would
have only a de minimis impact on segregated housing patterns in the area), aff’d sub
nom. Malone v. City of Fenton, 794 F.2d 680 (8th Cir. 1986) (table). Without
evidence of the County’s “perpetuation” or “reinforcement” of segregative effect,
River Cross cannot state a prima facie case and the County is entitled to summary
judgment on the FHA segregative effect claim on this basis alone.
The relevant facts are in the district court decision, No. 2:09-cv-00297 JWS, 2013 WL
2455928, at *7 (D. Ariz. June 5, 2013), rev'd on other grounds, Avenue 6E Investments, LLC v.
City of Yuma, 818 F.3d 493, 494-96 (9th Cir. 2016).
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However, for the sake of completion of the discriminatory effect analysis, see
Inclusive Communities, the Court will proceed to Steps 2 and 3 in the burden-shifting
analysis to consider the County’s legitimate, non-discriminatory reasons for denying
the River Cross application and whether River Cross has asserted any alternative less
B. The County’s Legitimate, Nondiscriminatory Justification
Assuming arguendo River Cross had been able to prove a prima facie case of
segregative effect, the burden would then shift to the County to prove that its
“challenged practice is necessary to achieve one or more substantial, legitimate,
nondiscriminatory interests.” 24 C.F.R. § 100.500(c) (2013 HUD Reg.). The County
argues it had legitimate, non-discriminatory 48 reasons to deny the River Cross
application to amend the Boundary Line, Future Land Use Map, and rezoning based
on Seminole County’s desire to avoid “urban sprawl.” (Doc. 43). As the County staff
identified, there were a significant number of issues with conversion of the rural48
River Cross does not suggest, nor would it be appropriate to suggest under the facts of
this case in which the County’s planning process was driven by state statute requiring extensive
community planning, that the County’s use of the term “urban sprawl” was nothing more than
“coded” language for intentional discrimination against minorities. Compare CWK Invs.-Hillsdale,
LLC v. Town of Darmstadt, No. 3:17-CV-00133, 2018 WL 10322077, at *8 (S.D. Ind. Sept. 13,
2018) (comments by residents of 97%-white town relating to the “urban sprawl of Detroit,” the
“crime rates,” and suggestions that the development’s potential residents “could live downtown”
in a nearby city constituted circumstantial evidence of racial animus). Moreover, River Cross did
not present any evidence to contradict Ms. Frederick’s explanation that Seminole County had
supported the building of more than 5,000 affordable housing units and that number did not include
the “home ownership” efforts of the County.
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agricultural land to the proposed commercial and dense residential development: the
lack of required central water and sewer services to the agricultural land, substantial
obstacles to crossing the Econlockhatchee River (and other natural resources
protection areas); lack of existing transportation and explanation of plans to fund
road expansion and improvements; the lack of transitions or buffer areas around the
development; and the incompatibility of the project with surrounding agricultural
and rural areas.
Thirty six years ago, the state of Florida began requiring its counties to create
comprehensive plans and future land use maps that would avoid “urban sprawl.”
Seminole County, as of 1991, first decided to create a boundary to promote urban
growth on the western side of the Econ River and concentrate the parks,
conservation, agricultural, and undeveloped land on the eastern side of the Econ
River where, even as of 2018, only 2% of the County’s population resided despite
comprising approximately one-third of the land in the County. Following the welllitigated dispute with a municipality within the County over the annexation and
development of land in the rural section of the County,49 the voters of the County
passed a Charter Amendment to solidify the County’s preemptive authority to decide
See Seminole County v. City of Winter Springs, 935 So.2d 521, 523-24 (Fla. 5th DCA
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which projects would be developed on the eastern side of the Boundary Line; there
would be no future high-density development in the rural area until the vacant land
in the urban area was depleted.
A Florida county’s denial of a rezoning application to protect the area from
“suburban and urban sprawl,” has been held by the Eleventh Circuit to be “without
question” a “legitimate government goal.” Dibbs v. Hillsborough Cty., Fla., 625 F.
App’x 515, 517 (11th Cir. 2015) (affirming grant of summary judgment to county
on developer’s due process claim because “[i]t is well settled that the maintenance
of community aesthetics is a legitimate government purpose”). The county in Dibbs
was justified in its decision to reject the developer’s application to rezone the
property and enforce its community plan in order to preserve natural areas and
resources, maintain ecological balance, and improve design aesthetics. Id. Other
courts have also held that the preservation of scenic and recreational areas is a
legitimate reason to deny rezoning in the context of equal protection challenges to
zoning restrictions. See, e.g., Gypsum Res., LLC v. Masto, 672 F. Supp. 2d 1127,
1142 (D. Nev. 2009) (holding that state interest in “preserving scenic views and rural
character” of Red Rock Canyon was a legitimate governmental purpose) (citing S.
County Sand & Gravel Co. v. Town of S. Kingstown, 160 F.3d 834, 836–37 (1st Cir.
1998); Ybarra v. Town of Los Altos Hills, 503 F.2d 250, 254 (9th Cir. 1974)
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(preservation of a rural environment)). Moreover, River Cross concedes that
Seminole County has a legitimate interest in limiting urban sprawl. (Doc. 35-3 at
The Supreme Court’s cautionary statement in Inclusive Communities, is
especially apt in this case: “Zoning officials . . . must often make decisions based on
a mix of factors, both objective (such as cost and traffic patterns) and, at least to
some extent, subjective (such as preserving historic architecture). These factors
contribute to a community’s quality of life.” Id. at 2523. In this case, in an effort to
avoid “urban sprawl,” the County has made the legitimate, non-discriminatory
decision, consistent with the Florida growth management statutes, to concentrate
higher-intensity residential and commercial developments on the western side of the
Econ River where the infrastructure, transportation, and jobs support more intense
growth. The County’s decision is reflected in the design of the County’s stateapproved Comprehensive Plan, and its related Future Land Use Map. Other counties
in the state—including Orange, Osceola, Brevard, Lake, Polk, Flagler, Hillsborough,
and Marion—have also used the urban service area designation for capital planning,
infrastructure (transportation and utilities) and environmental purposes. (See Doc.
35-15 ¶ 27). River Cross has failed to raise a genuine issue of material fact as to the
County’s legitimate non-discriminatory reason for denial of the River Cross
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application and enforcement of the Boundary Line. Therefore, the County is entitled
to summary judgment.
The County having stated legitimate, nondiscriminatory reasons for denial of
the River Cross application, in order to survive summary judgment, River Cross
would have the burden to prove that the County’s interest in “the challenged practice
could be served by another practice that has a less discriminatory effect.” 24 C.F.R.
§ 100.500 (2013 HUD Reg.). Despite the County having specifically raised this issue
(Docs. 35, 43), River Cross has not alleged any alternative with a “less
discriminatory” effect. (Docs. 42, 45).
Accordingly, the County is entitled to summary judgment on River Cross’
Fair Housing Act segregative effect claim.
As an initial matter, River Cross does not have standing to pursue a Fair
Housing Act claim. As a non-minority developer pursuing a commercial venture,
without any evidence that minority residents would live in the proposed
development, or that the state agency would approve affordable housing where no
transportation at the site exists, River Cross cannot pursue a discriminatory effect
claim under the FHA.
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Even if River Cross had standing in this FHA case, it fails to state a prima
facie case because it lacks statistical evidence that the County’s enforcement of the
Boundary Line or its denial of the River Cross application “perpetuates” or
“reinforces” a segregative effect on minority groups. Dr. Cowan, the expert for River
Cross, admits that he cannot provide an opinion on causation, and his methodology
using the “weighting” of minority representation within the census tracts divided by
the Boundary Line lacks reliability. Therefore, his testimony will not assist the trier
of fact and will be excluded. Moreover, it is undisputed that the Rural Area of the
County is becoming more integrated—not less—even as its population is shrinking.
Assuming arguendo River Cross had established a prima facie case of
segregative effect, it has failed to challenge the County’s legitimate, nondiscriminatory reason for enforcing the Boundary Line. River Cross does not dispute
that the County has a legitimate interest in avoiding “urban sprawl,” or that County’s
zoning decisions must be consistent with the comprehensive plan and future land
use map it developed pursuant to Florida’s community planning laws. River Cross
has also failed to show that the County could have met Florida’s goal to avoid “urban
sprawl” through a “less discriminatory” means.
Based on the foregoing, it is ordered as follows:
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1. Seminole County’s Motion to Exclude the Opinions and Expert Testimony
of Dr. Charles Cowan (Doc. 34) is GRANTED.
2. Seminole County’s Motion for Summary Judgment (Doc. 35) is
3. Plaintiff River Cross Land Company, LLC’s Motion for Partial Summary
Judgment (Doc. 36) is DENIED.
4. Seminole County’s Motion in Limine (Doc. 44) is DENIED as moot.
5. The Clerk is directed to enter judgment that Plaintiff River Cross Land
Company, LLC take nothing on its claims, and Defendant Seminole
County is entitled to costs.
6. The Clerk is directed to close the case.
DONE and ORDERED in Chambers, in Orlando, Florida on June 4, 2021.
Copies furnished to:
Counsel of Record
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