Weekley Homes, LLC v. Board of County Commissioners

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

WEEKLEY HOMES, LLC,

Plaintiff,

v. Case No. 8:20-cv-03103-AEP

BOARD OF COUNTY COMMISSIONERS,

HILLSBOROUGH COUNTY, FLORIDA, and

THE SCHOOL BOARD OF HILLSBOROUGH

COUNTY, FLORIDA, a political subdivision of

the State of Florida,

Defendants.

/

ORDER

This cause is before the Court on the Board of County Commissioners of

Hillsborough County, Florida (“County”) and the School Board of Hillsborough

County, Florida’s (the “School Board”) (collectively “Defendants”), Motion to

Dismiss Plaintiff’s Amended Complaint (Doc. 49). Plaintiff, Weekley Homes, LLC

(“Weekley Homes”) filed its response and Memorandum of Law in Opposition to

Defendants’ Motion to Dismiss (Doc. 52), and Defendants filed a reply (Doc. 55).

The Court held a hearing on February 7, 2022, on Defendants’ Motion.

Accordingly, this matter is ripe for review.

I. Background

Weekley Homes is the residential home builder for the Encore at the

FishHawk Ranch (“Encore”) community in Hillsborough County (Doc. 45, ¶ 10).

Weekley Homes began building single-family homes within Encore in 2016 and

paying the applicable County impact fees (Doc. 45, ¶¶ 1, 13). Pursuant to

Hillsborough County Ordinance 96-29 ( the “Ordinance”), impact fees are due and

payable at the time of issuance of a certificate of occupancy for land development

activity generating impacts assessed by the Ordinance (Doc. 45, ¶ 14). Among the

assessed impact fees, the County may impose a School Impact Fee (Doc. 45, ¶ 15).

The County provides an exemption to the School Impact Fee which states as

follows:

Communities for Older Persons. A dwelling that is located in any

development designated and operated as a Community for Older

Persons, in compliance with the terms and provisions of the Federal

Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as

amended by the Fair Housing Amendments Act of 1988 and the

Housing for Older Persons Act of 1995, 42 U.S.C. §§3601-3619, and

that prohibit any person under the age of 18 years from residing within

any dwelling on the property as a permanent resident, as evidenced by

a recorded declaration of covenants and restrictions not subject to

revocation or amendment for a period of at least 30 years from the date

of recording. Said covenants and restrictions shall run with the land.

(Doc. 45, ¶ 18). Weekley Homes built homes at Encore subject to the Encore

Declaration of Covenants and Easements (“Encore Declaration”) (Doc. 45, ¶ 1).

Section 3.2(a) of the Encore Declaration restricts the “Occupancy of Units” as

follows:

Encore at FishHawk Ranch is established as a senior housing

community designed and intended to provide housing for persons 55

years of age or older, although younger persons are not restricted from

occupying a Unit along with a person 55 years of age or older so long

as such co-occupancy is in compliance with this Section 3.2. In

addition, certain exceptions may be made pursuant to subparagraph

(b)(i). The provisions of this Paragraph are intended to be consistent

with, and are set forth in order to comply with, the “housing for older

persons” exemption (“HOPA Exemption”) from prohibitions on

discrimination based on familial status under the federal Fair Housing

Act, 42 U.S.C. § 3601, et seq., as it may be amended and the Florida

Fair Housing Act, Fla. Stat. 760.20-760.37, as it may be amended

(collectively, the “Fair Housing Acts”).

(Doc. 45, ¶ 22). Additionally, in Section 3.2(b)(i), the Encore Declaration mandates

that “[e]ach occupied Unit shall at all times have a permanent resident (as defined

herein) at least one person who is 55 years of age or older (the “Qualified

Occupant”) . . .” (Doc. 45, ¶ 23). Furthermore, in Section 3.2(c), the Encore

Declaration prohibits the following:

No Unit shall be occupied by any person under the age of 30, except

that one person under the age of 30 may occupy a Unit with prior

notice to and approval of the Board if the Board reasonably determines

that such occupancy is necessary to provide reasonable

accommodation for the health care needs of the person’s handicapped

parent or grandparent who is residing in the Unit in full compliance

with this Section and would be unable to continue to reside in the Unit

without such person’s care. For purposes of this subsection (c), a Unit

shall be deemed to be “occupied” by any person who stays overnight

in the Unit more than 28 nights, consecutive or nonconsecutive, in any

12-month period.

(Doc. 45, ¶ 24).

Although Weekley Homes never applied for an exemption to the County’s

School Impact Fee, the Ordinance requires that a community’s declaration include

a thirty-year prohibition on revocation of the age-restrictive provisions for dwellings

to be exempt from the School Impact Fee (Doc. 45, ¶ 63).

On November 19, 2020, Weekley Homes filed its Complaint for declaratory

relief, damages, and fees (the “Complaint”) in Hillsborough County, Florida, Case

No. 20-CA-9126 (the “State Court Action”) (Doc. 1-1). On December 30, 2020,

Defendants removed the State Court Action to federal court because the Complaint

sought remedies pursuant to 42 U.S.C. § 1983, et seq (Doc. 1). Subsequently,

Defendants each moved to dismiss the Complaint (Docs. 15, 16). Weekley Homes

then moved to convert Defendants’ Motions to Dismiss to Motions for Summary

Judgment as to Count II of the Complaint (i.e., the facial challenge to the

constitutionality of the County’s Ordinance) (Doc. 32). After a hearing on Weekley

Homes’ Motion, the Court entered an Order on May 5, 2021, granting Weekley

Homes leave to amend Count I of the Complaint due to its failure to identify a

comparator in support of its Equal Protection claim and denying Weekley Homes’

Motion to Convert Defendants’ Motions to Dismiss to Motions for Summary

Judgment (Doc. 42). Thereafter, Weekley Homes filed its Amended Complaint

asserting the following claims: (1) a claim under 42 U.S.C. § 1983 alleging that

Defendants violated Weekley Homes’ Equal Protection Rights (Count I); (2) a

claim for declaratory judgment under Chapter 86, Florida Statutes, alleging that the

County’s School Impact Fee Ordinance is unconstitutional on its face, and therefore

unconstitutional as applied to Weekley Homes (Count II); and (3) in the alternative

to Count II, declaratory judgment under Chapter 86, Florida Statutes, alleging that

the County’s School Impact Fee Ordinance is unconstitutional as applied to

Weekley Homes (Count III) (Doc. 45).1 In the Amended Complaint, Weekley

Homes seeks declaratory relief, money damages, and attorney’s fees pursuant to 42

U.S.C. § 1988.

II. Standard of Review

Defendants seek to dismiss Weekley Homes’ claims for failure to state a

claim upon which relief can be granted under Federal Rule of Civil Procedure

12(b)(6), and lack of jurisdiction over Counts II and III. In considering a motion to

dismiss under Rule 12(b)(6), the court views the complaint in the light most

favorable to the plaintiff and accepts as true all the factual allegations contained

therein. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Hill v.

White, 321 F.3d 1334, 1335 (11th Cir. 2003) (citation omitted). The court need not,

however, “accept as true a legal conclusion couched as a factual allegation.”

Papasan v. Allain, 478 U.S. 265, 286 (1986). The plaintiff must plead “enough facts

to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). Although a complaint challenged by a Rule 12(b)(6) motion

to dismiss need not contain detailed factual allegations, a plaintiff must provide the

grounds for his or her entitlement to relief, and “a formulaic recitation of the

elements of a cause of action will not do.” Id. at 555 (citations omitted). The court

must be able to “draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

1 After Weekley Homes filed its Amended Complaint, the Court dismissed Defendants’

Accordingly, only a complaint that states a plausible claim for relief will survive a

motion to dismiss. See id. at 679.

Although a district court must generally convert a motion to dismiss into a

motion for summary judgment if the court considers materials outside the

complaint, a court may consider documents attached to the complaint or

incorporated by reference without converting the motion into a motion for

summary judgment if the documents are: (1) central to the complaint, and (2) the

documents’ authenticity is not in dispute. Day v. Taylor, 400 F.3d 1272, 1275–76

(11th Cir. 2005).

III. Discussion

A. Ripeness

Ripeness, like standing, “present[s] the threshold jurisdictional question of

whether a court may consider the merits of a dispute.” Elend v. Basham, 471 F.3d

1199, 1204 (11th Cir. 2006). The ripeness doctrine requires the plaintiffs to obtain a

“final decision” before asserting their constitutional challenges. See Eide v. Sarasota

County, 908 F.2d 716, 723–24 n. 12 (11th Cir. 1990) overruled on other grounds

by Knick v. Twp. of Scott, Pa., 139 S. Ct. 2162 (2019). “An exception to the final

decision requirement exists where it would be futile for the plaintiff to pursue a final

decision.” Strickland v. Alderman, 74 F.3d 260, 265 (11th Cir. 1996).

Defendants argue that Weekley Homes has neither alleged nor can it allege

that it challenged the School Impact Fee or even applied for the exemption.

Additionally, according to Defendants, the Ordinance provides that an applicant

who is denied a request for an exemption may, within thirty days after the denial,

appeal to the County. Defendants argue that Weekley Homes failed to engage the

appeal process since it began paying School Impact Fees. Therefore, Defendants

argue, the Amended Complaint is not ripe for review and should be dismissed.

In its Amended Complaint, Weekley Homes alleges that requesting the

exemption would have been futile, and therefore its failure to do so should be

excused (Doc. 45, ¶ 63). Weekley Homes alleges that before initiating this lawsuit,

it sought clarification from the County, which confirmed that the age-restriction be

part of “a recorded declaration of covenants and restrictions not subject to

revocation or amendment for a period of at least 30 years from the date of recording.

And that such covenants and restrictions shall run with the land” (Doc. 45, ¶ 63).

Weekley Homes’ position that it would have been futile for it to request an

exemption or to appeal the denial of an exemption because the age restriction

provision in the Encore Declaration does not contain a thirty-year irrevocable clause

is well taken. Based on Weekley Homes’ allegations regarding its interactions with

the County and the language of the Ordinance, the thirty-year non-revocation

clause is required for an exemption to the School Impact Fee and the Encore

Declaration contains no such provision. Additionally, although Weekley Homes

could have arguably sought a review or appeal with the County, Defendants have

not cited to any authority stating that such an appeal was required pre-suit.

Accordingly, because Weekley Homes has set forth facts sufficient to prove futility,

its claims are ripe for review to the extent explained below.

B. Count I: Equal Protection

In Count I of the Amended Complaint, Weekley Homes asserts that although

Encore is a community for older persons pursuant to federal law, the County has

impermissibly charged it School Impact Fees. According to Weekley Homes,

Encore is an age-restricted community because the Encore Declaration contains

provisions that restrict minors from living there and prevents Weekley Homes from

ever changing that without overwhelming demand from the owners. The Amended

Complaint purports that Weekley should be treated as a “class of one” because it

has been intentionally treated differently than similarly situated developers with no

rational basis for the difference in treatment. Defendants argue that Weekley Homes

fails to properly allege a “class of one” Equal Protection claim because it cannot

show that it is similarly situated to a chosen comparator. Weekley Homes responds

that the Amended Complaint contains the factual elements necessary to sustain a

cause of action by virtue of the allegations that the County treated it differently as

compared to similarly situated builders who applied and received an exemption to

the School Impact Fee.

The Fourteenth Amendment to the United States Constitution provides, in

pertinent part: “No State shall make or enforce any law which shall . . . deny to any

person within its jurisdiction the equal protection of the laws.” U.S. Const. amend

XIV, § 1. The Equal Protection Clause, as it is commonly referred to, “is essentially

a direction that all persons similarly situated should be treated alike.” Alamo Rent-

A-Car, Inc. v. Sarasota-Manatee Airport Auth., 825 F.2d 367, 369 (11th Cir. 1987).

Generally, the Equal Protection Clause has been applied to governmental

classifications that discriminate against a suspect or quasi-suspect class or any

infringement of a fundamental right. See Engquist v. Ore. Dep’t of Agric., 553 U.S. 591,

601 (2008). However, in Vill. of Willowbrook v. Olech, the Supreme Court granted a

petition for certiorari to determine “whether the Equal Protection Clause gives rise

to a cause of action on behalf of a ‘class of one’ where the plaintiff did not allege

membership in a class or group.” 528 U.S. 562, 564 (2000). The Court, answering

in the affirmative, explained its decision as follows:

Our cases have recognized successful equal protection claims brought

by a “class of one,” where the plaintiff alleges that she has been

intentionally treated differently from others similarly situated and that

there is no rational basis for the difference in treatment. In so doing,

we have explained that “‘[t]he purpose of the equal protection clause

of the Fourteenth Amendment is to secure every person within the

State’s jurisdiction against intentional and arbitrary discrimination,

whether occasioned by express terms of a statute or by its improper

execution through duly constituted agents.”‘

Id. (quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923)).

Although the Supreme Court observed that it had previously recognized

claims like the one raised by plaintiff, the opinion was nonetheless an important

development in equal protection jurisprudence because the “class of one” phrasing

had never been used by the Supreme Court in the equal protection context, and the

cases cited by the Supreme Court did not expressly state that equal protection claims

were cognizable apart from class-based discrimination. Griffin Indus., Inc. v. Irvin,

496 F.3d 1189, 1201-02 (11th Cir. 2007); see Sioux City Bridge Co., 260 U.S. at 445

(recognizing a plaintiff’s equal protection claim where the state tax assessor

“intentionally and arbitrarily assessed the Bridge Company’s property at 100 per

cent. of its true value and all the other real estate and its improvements in the county

at 55 per cent”); Allegheny Pittsburgh Coal Co. v. County Commission of Webster County,

488 U.S. 336, 344 (1989) (recognizing an equal protection claim where the plaintiff’s

property had “been assessed at roughly 8 to 35 times more than comparable

neighboring property, and these discrepancies have continued for more than 10

years with little change”).

Therefore, a “class of one” equal protection claim does not allege

discrimination against a protected class or infringement of a fundamental right, but

rather asserts that the plaintiff “has been intentionally treated differently from others

similarly situated and that there is no rational basis for the difference in treatment.”

Young Apartments, Inc. v. Town of Jupiter, Fla., 529 F.3d 1027, 1032 n. 1 (11th Cir.

2008) (quoting Griffin, 496 F.3d at 1202). In other words, the plaintiff has been

singled out without a rational basis for the difference in treatment. The Eleventh

Circuit has emphasized that “[t]o prove a ‘class of one’ claim, the plaintiff must

show (1) that he was treated differently from other similarly situated individuals,

and (2) that the defendant unequally applied a facially neutral ordinance for the

purpose of discriminating against him.” Leib v. Hillsborough Cnty. Pub. Transp. Com’n,

558 F.3d 1301, 1307 (11th Cir. 2009) (citation omitted) (holding that the plaintiff’s

“class of one” claim was properly dismissed where the plaintiff failed to establish

the similarly situated requirement).

With respect to the first prong, the Eleventh Circuit has frequently noted that

“the ‘similarly situated’ requirement must be rigorously applied in the context of

‘class of one’ claims.” Id. (citing Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269,

1275 (11th Cir. 2008)). In fact, to be similarly situated in a “class of one” claim, a

comparator must ultimately be “prima facie identical in all relevant respects.”

Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1314 (11th Cir. 2006). “The reason

that there is a ‘similarly situated’ requirement in the first place is that at their heart,

equal protection claims, even ‘class of one’ claims, are basically claims of

discrimination.” Griffin, 496 F.3d at 1207 (quoting McDonald v. Vill. of Winnetka, 371

F.3d 992, 1009 (7th Cir. 2004)). “To maintain this focus on discrimination, and to

avoid constitutionalizing every state regulatory dispute, we are obliged to apply the

‘similarly situated’ requirement with rigor.” Id. Thus, “[d]ifferent treatment of

dissimilarly situated persons does not violate the equal protection clause.” E & T

Realty v. Strickland, 830 F.2d 1107, 1109 (11th Cir. 1987); Campbell, 434 F.3d at 1314.

In evaluating the similarly situated requirement, the court looks at the state action

“in light of the full variety of factors that an objectively reasonable governmental

decisionmaker would have found relevant in making the challenged decision.”

Griffin, 496 F.3d at 1203.

In the instant case, the County has provided the “factors that an objectively

reasonable governmental decisionmaker would have found relevant” in its

Ordinance. See id. The Ordinance allows for an exemption to the School Impact Fee

for communities for older persons who are “in compliance with the terms and

provisions of the Federal Fair Housing Act, . . . the Housing for Older Persons Act

of 1995, 42 U.S.C. §§3601-3619, and that prohibit any person under the age of 18

years from residing within any dwelling on the property as a permanent resident, as

evidenced by a recorded declaration of covenants and restrictions not subject to

revocation or amendment for a period of at least 30 years from the date of

recording.” (Doc. 45, ¶ 18). The criteria is mandatory and applies to every

application the County reviews. To show an equal protection violation, Weekley

Homes must show that the County treated it differently than other communities—

i.e., denied an exemption—that are similarly situated insofar that their applications

for an exemption was approved using the same criteria in the Ordinance.

Previous “class of one” decisions from the Supreme Court and the Eleventh

Circuit offer some guidance in determining whether Weekley Homes has shown

sufficient similarity between it and its comparators to state a “class of one” claim.

In Olech, the plaintiff landowner asked the Village of Willowbrook to connect her

property to the municipal water supply. 528 U.S. at 563. Although the Village

required a 15-foot easement from other landowners to connect to the municipal

water supply, it demanded a 33-foot easement from the plaintiff. Id. The plaintiff

sued, arguing that the Village’s requirement of a larger easement violated her Equal

Protection rights. Id. The Supreme Court held that the plaintiff adequately stated a

“class of one” equal protection claim. Id. at 565. According to the Supreme Court,

the plaintiff’s allegations that the Village’s initial demand to her for an easement

with eighteen more feet than the Village required from other landowners was

irrational and wholly arbitrary were sufficient to plead a violation of the Equal

Protection Clause. Id. The similarity between the plaintiff and her neighbors was

obvious because the plaintiff alleged that the Village intentionally demanded a 33–

foot easement as a condition of connecting her property to the municipal water

supply while it only required a 15–foot easement from other similarly situated

property owners. See id. at 563. Therefore, the Village departed from a clear standard

by demanding a 33-foot easement from the plaintiff when it had only demanded a

15-foot easement from other landowners in exchange for connecting them to the

municipal water supply.

In Campbell, the plaintiff developers claimed that the city violated the Equal

Protection Clause by denying them tentative approval for an apartment project. 434

F.3d at 1315. Plaintiffs claimed that all other developers that went before the city’s

planning commission had received approval and that the plaintiffs were treated

differently by the city because one of the plaintiffs had unsuccessfully run against

the city’s mayor in a previous mayoral election, and the mayor was now a member

of the planning commission that refused to give tentative approval. Id. at 1309. The

case went to trial, and the jury returned a verdict for the plaintiffs. Id. The city

appealed, asserting as error the district court’s denial of the city’s Rule 50 motion

for judgment as a matter of law. Id. The Eleventh Circuit reversed the district court’s

decision, in part, because the plaintiffs had not offered any evidence to support an

equal protection claim of similarly situated individuals who were treated differently.

Id. The Eleventh Circuit found that there was a distinction between the plaintiff

developers who sought approval of an apartment complex containing 144 to 180

units and commercial developments such as a credit union and a medical center,

and thus the latter were not similarly situated to the plaintiff. Id. at 1316. The court

reasoned that a credit union and medical center were not similarly situated

comparators because the credit union and medical center were commercial projects

as opposed to a large residential complex. Id. at 1311, 1314-15. The court also

rejected that other proposed apartment complexes were similarly situated because

one development did not require the same variances as the plaintiff’s proposal and

another development, unlike the plaintiffs, submitted completed site maps which

met the city’s density requirements. Id. at 1315-16. The court also noted that one of

the apartment complexes which the plaintiffs identified as a comparator was not

treated differently than the plaintiffs’ development because it had also not received

tentative approval. Id. at 1317. Thus, the Court reasoned, the evidence presented

led it to believe that the plaintiffs were treated similarly to another development that

had gone before the city’s planning commission. Id. The Court concluded that

because the plaintiffs had not given any evidence of the city’s different treatment of

a development that was similarly situated to their proposed development, they had

not met their evidentiary burden in bringing a successful “class of one” equal

protection claim. Id.

In another case from the Eleventh Circuit, which was in a similar procedural

posture as the instant case, the court emphasized the importance of the plaintiff

identifying a similarly situated comparator. In Griffin, the plaintiff owned a chicken

rendering plant that was allegedly subject to stricter regulations by city and state

officials compared to other plants. 496 F.3d at 1195. The plaintiff claimed state

regulators, pressured by city officials, were selectively enforcing regulations based

on animosity towards the plant. Id. The plaintiff alleged that another competitor in

the Georgia chicken rendering business was a similarly situated comparator. Id. at

1202. The Eleventh Circuit determined that a “‘class of one’ plaintiff might fail to

state a claim by omitting key factual details in alleging that it is ‘similarly situated’

to another.” Id. at 1205. The court noted that ironically, it was not the lack of detail

that was the problem with the plaintiff’s complaint, but that it had said too much.

Id. The court found that the complaint contained allegations of the increase volume

in citizen complaints regarding the plaintiff’s plant and the political pressure

resulting from the unhappy citizens, whereas there were no allegations of similar

complaints or political pressure regarding the comparator. Id. Additionally, the

court noted that the comparator had alerted the state’s environmental protection

division of possible water pollution problems at its plant and was cooperative in

seeking to remediate such problems. Id. at 1206-07. However, there was no

indication in the complaint that the plaintiff had self-reported any problems with its

land application system (water quality control). Id. at 1207. The court reasoned that

it should not come as a surprise that the state regulators, who have limited resources

and rely on voluntary cooperation of the companies they regulate, would treat

companies that self-report differently. Id. The court also found that the plaintiff’s

complaint noted that self-reporting was important, that its comparator self-reported,

and that the plaintiff did not. Id. “This difference is nothing if not relevant, and it is

fatal, we think, to [the plaintiff’s] claim that the defendants acted unconstitutionally

in not treating them alike.” Id. The Court concluded that because the plaintiff’s own

complaint showed that it was not similarly situated to its comparator in light of all

the factors that would be relevant to an objectively reasonable governmental

decisionmaker, the plaintiff failed to state a claim for a “class of one” equal

protection violation. Id.

In the instant case, the Amended Complaint provides specific details

regarding the Encore Declaration and the age-restrictive provisions in the alleged

comparators’ declarations for this Court to conclude that they are not similarly

situated to Weekley Homes. The Amended Complaint itself is 33 pages long, and

it is accompanied by 5 different exhibits (Doc. 45). Under the Federal Rules of Civil

Procedure, these exhibits are part of the pleading “for all purposes.” Fed.R.Civ.P.

10(c); see also Solis–Ramirez v. U.S. Dep’t of Justice, 758 F.2d 1426, 1430 (11th Cir.

1985) (“Under Rule 10(c) Federal Rules of Civil Procedure, such attachments are

considered part of the pleadings for all purposes, including a Rule 12(b)(6)

motion.”). In the Amended Complaint, Weekley Homes alleges that other builders

who have acquired the School Impact Fee exemption have done so by merely

having a provision in their declaration that expressly states that the age-restrictive

provisions may not be altered for a thirty-year period (Doc. 45 ¶ 54). Weekley

Homes alleges that through a public records request, the County provided it with

ten declarations from communities that received a School Impact Fee exemption

and all of which contained an irrevocable thirty-year prohibition on the revocation

or modification of the age-restrictive provisions (Doc. 45, ¶ 68). Although Weekley

Homes does not identify the ten comparators, it provides a copy of four pages from

one of those alleged comparator’s declaration (Doc. 45, ¶ 68, Ex. E).

Although Weekley Homes’ Amended Complaint makes the conclusory

allegation that it is similarly situated to the other communities in all relevant ways,

the allegations and exhibits attached to the Amended Complaint plainly show that

this is not the case. The Court’s duty to accept the factual allegations in the

complaint as true does not require it to ignore specific factual details of the pleading

in favor of general or conclusory allegations. See Associated Builders, Inc. v. Ala. Power

Co., 505 F.2d 97, 100 (5th Cir. 1974)2 (citation omitted) (“Conclusory allegations

and unwarranted deductions of fact are not admitted as true, especially when such

conclusions are contradicted by facts disclosed by a document appended to the

complaint. If the appended document, to be treated as part of the complaint for all

purposes under Rule 10(c), Fed.R.Civ.P., reveals facts which foreclose recovery as

a matter of law, dismissal is appropriate.”).

Weekley Homes argues that it is similarly situated to those builders in that

they all qualify for an exemption to the School Impact Fee, but Weekley Homes

was treated differently because it does not have an irrevocable thirty-year

prohibition on the revocation or modification of the age-restrictive provision, which

2 In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981), the Eleventh

Circuit adopted as binding precedent former Fifth Circuit decisions handed down prior to

the comparators have. However, the very fact that the comparators have the

language required under the Ordinance and as a result, the County approved their

exemption, makes them not similarly situated to Weekley Homes. Weekley Homes

has not identified any comparators that did not have an irrevocable thirty-year

prohibition on the revocation or modification of the age-restriction provision and

was approved for an exemption by the County. In fact, Weekley Homes asserts that

the County “provided no declarations, and did not recall that any existed, that did

not contain the 30-year non-revocation provision, but that the County deemed to

qualify for an exemption to its School Impact Fee.” (Doc. 45, ¶ 69). This goes to

show that a community similarly situated to Weekley Homes, that is one without

an irrevocable thirty-year prohibition on the modification or revocation of the age

restriction, would have been treated similarly to Weekley Homes in that it would

not have received an exemption from the County’s School Impact Fee.

Nonetheless, Weekley Homes argues that “where the challenged

governmental decision is simple or one-dimensional – for example, where the

decision involves the application of a single criterion to a single issue – making out

a ‘class of one claim’ is generally easier than in cases where governmental action is

‘multi-dimensional, involving varied decisionmaking criteria applied in a series of

discretionary decisions made over an extended period of time.’” Kaleta v. City of

Anna Maria, 8:16-CV-347-T-27AAS, 2017 WL 4417673, at *2 (M.D. Fla. Oct. 3,

2017) (quoting Leib, 558 F.3d at 1307). However, although the Ordinance provides

a simple criterion for applicants to receive a School Impact Fee exemption, it does

not necessarily mean that Weekley Homes has stated a “class of one” claim. Rather,

the fact that the Ordinance provides a criterion to qualify for an exemption, a

criterion that Weekley Homes concedes it does not expressly meet, and the County

has equally applied the Ordinance to its applicants demonstrates that the other

builders are not similarly situated to Weekley Homes. This can be analogized to a

hypothetical stemming from Olech. If the Village had demanded a 30-foot easement

from all the landowners in order to connect the property to the municipal water

supply and the plaintiff refused to provide the 30-foot easement and instead offered

a 25-foot easement and as a result the Village denied the plaintiff’s request, it seems

highly unlikely that the Supreme Court would have found there to be a “class of

one” claim. Although the plaintiff would have been right to allege that she was

treated differently, it would also be right that the Village treated everyone equally

by demanding the same criteria from all the applicants. And if the plaintiff could

not identify any other comparator who also refused to provide the Village with a

30-foot easement and was still connected to the municipal water supply, the plaintiff

would not have stated a “class of one” claim.

Considering the full variety of factors that an objectively reasonable

governmental decisionmaker would have found relevant, the fact that Encore

Declaration does not contain an irrevocable thirty-year prohibition on the

revocation or modification of the age-restrictive provision makes Weekley Homes

dissimilar to its comparators. Equal protection of the laws in the “class of one”

context requires no more than for Weekley Homes to be “secure[d] . . . against

intentional and arbitrary discrimination, whether occasioned by express terms of a

statute or by its improper execution through duly constituted agents.” Olech, 528

U.S. at 564 (quotation marks and citation omitted). Weekley Homes has failed to

assert any such “discrimination” because its own complaint shows that it was not

similarly situated to its purported comparators. As a result, Weekley Homes failed

to allege enough plausible facts on the face of the Amended Complaint to show that

it was treated differently from other similarly situated.

C. Counts II – III: Supplemental Jurisdiction

In addition to the aforementioned equal protection claim, Weekley Homes

raises two claims seeking a declaratory judgment that the County’s School Impact

Fee Ordinance is unconstitutional. Defendants argue that the Court does not have

jurisdiction over Counts II and III of the Amended Complaint and Plaintiff does

not specifically address this issue.3 Generally, as a result of its original jurisdiction

over a federal claim, the Court may exercise supplemental jurisdiction over

Weekley Homes’ state law claims pursuant to 28 U.S.C. § 1367(a). See Arbaugh v. Y

& H Corp., 546 U.S. 500, 514, (2006) (“[W]hen a court grants a motion to dismiss

for failure to state a federal claim, the court generally retains discretion to exercise

supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, over pendent state-law

claims”). Section 1367(a) provides that a “district court shall have supplemental

jurisdiction over all other claims that are so related to claims in the action within . .

3 While Defendants argue that this Court does not have jurisdiction over Counts II and II,

the Court may exercise its discretion and retain supplemental jurisdiction pursuant to 28

. [the court’s] original jurisdiction that they form part of the same case or

controversy.” However, pursuant to 28 U.S.C. § 1367(c), the court may decline to

exercise supplemental jurisdiction if (1) the claim raises a novel or complex issue of

state law, (2) the claim substantially predominates over the claim which the district

court has original jurisdiction, (3) the court has dismissed all claims over which it

has original jurisdiction, or (4) in exceptional circumstances, there are other

compelling reasons for declining jurisdiction. Where § 1367(c) applies,

considerations of judicial economy, convenience, fairness, and comity may

influence the court’s discretion to exercise supplemental jurisdiction. Baggett v. First

Nat’l Bank, 117 F.3d 1342, 1353 (11th Cir. 1997) (citations omitted). “[D]ismissal of

state law claims [is] strongly encouraged when federal law claims are dismissed

prior to trial.” Id. (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)

(“Certainly, if the federal claims are dismissed before trial, even though not

insubstantial in a jurisdictional sense, the state claims should be dismissed as

well”)). In fact, “State courts, not federal courts, should be the final arbiters of state

law.” Baggett, 117 F.3d at 1353.

No Florida court has addressed the issues that Weekley Homes’

constitutionality claims will inevitably raise—namely, the application of the Florida

Supreme Court’s decision in Volusia County v. Aberdeen at Ormond Beach, L.P., 760

So. 2d 126 (Fla. 2000) and the constitutionality of the Ordinance. Should

supplemental jurisdiction be exercised, this Court would eventually need to

determine the validity of the Ordinance and its provisions under Florida law. Thus,

this is a novel issue of state law. Because Weekley Homes’ case raises a novel issue

of state law and the Court has dismissed all claims over which it has original

jurisdiction, the Court must consider whether judicial economy, convenience,

fairness, and comity counsel dismissal of the remaining state claims. See Baggett, 117

F.3d at 1353.

First, judicial economy weighs against exercising supplemental jurisdiction.

Judicial economy typically is “served when issues of state law are resolved by state

courts.” Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1288 (11th Cir. 2002). This

Court recognizes that the state court may be better situated to resolve the remaining

claims raised by Weekley Homes in its Amended Complaint. Additionally, while

the case has been stayed, the parties have not thoroughly briefed the

constitutionality claims and this Court has not made any findings regarding the

same, so no duplicative court orders would result from remanding the state claims.

As such, this Court has not expended unnecessary resources that will need to be

repeated in state court.

Second, convenience to the parties does not favor retaining or declining

jurisdiction. Weekley Homes initially filed the case in state court and remand would

merely place Plaintiff where it left off.

Third, fairness considerations do not favor retaining jurisdiction here.

Because this case has not progressed past Defendants’ motions to dismiss, it is still

in the early stages of litigation. The Court does not see how it would be unfair to

remand the case as the parties would have sufficient time to conduct discovery and

proceed.

And fourth, comity cuts against exercising supplemental jurisdiction. “It is a

bedrock principle that ‘needless decisions of state law should be avoided both as a

matter of comity and to promote justice between the parties, by procuring for them

a surer-footed reading of applicable law.’” Ameritox, Ltd. v. Millennium Laboratories,

Inc., 803 F.3d 518, 540 (11th Cir. 2015) (quoting United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 726 (1966)). Comity is well-served by allowing Florida—not federal—

courts resolve matters regarding Florida law and Florida Supreme Court precedent.

Considering these factors, this Court concludes that the state court is best

equipped to research and rule on matters of state law, and comity would suggest

that it should be allowed to do so. Where the court declines to exercise supplemental

jurisdiction over such claims and the case was originally filed in state court, the

remaining claims should be remanded to state court. See Cook ex rel. Estate of Tessier

v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1123 (11th Cir. 2005) ( “Because this

case was originally filed in state court and removed to federal court pursuant to 28

U.S.C. § 1441, if the district court declines to continue to exercise supplemental

jurisdiction, [the] remaining claim should be remanded to state court.”); Lewis v.

City of St. Petersburg, 260 F.3d 1260, 1267 (11th Cir. 2001) (holding that after all

federal claims have been dismissed, “[i]f the district court does decline to exercise

supplemental jurisdiction, these [state] claims shall be remanded to state court,

rather than dismissed, because this case was originally filed in state court and

removed to federal court”).

Accordingly, this Court declines to exercise jurisdiction over Weekley

Homes’ state law claims (Counts II & III), which shall be remanded back to the

state court.

D. Attorney’s Fees Under 42 U.S.C. § 1988

In Count I of the Amended Complaint, Weekley asserts a claim for attorney’s

fees and costs pursuant to 42 U.S.C. § 1988 for the prosecution of its 42 U.S.C. §

1983 claim against Defendants (Doc. 45, ¶ 73). Section 1988 provides in pertinent

part that “[i]n any action or proceeding to enforce a provision of [S]ection[] . . . 1983

. . . the court, in its discretion, may allow the prevailing party . . . a reasonable

attorney’s fee . . . .” 42 U.S.C. § 1988(b). Defendants argue that attorney’s fees may

be awarded to a prevailing defendant where “the suit was vexatious, frivolous, or

brought to harass or embarrass the defendant.” (Doc. 49, 18-19) (quoting Hensley v.

Eckerhart, 461 U.S. 424, 429, n. 2 (1983)). Thus, Defendants argue, they are entitled

to fees because Weekley Homes has failed to identify a similarly situated

comparator and thus failed to establish a prima facie “class of one” Equal Protection

action even after its opportunity to amend the original compliant.

Under 42 U.S.C. § 1988, the district court may award attorney’s fees to a

prevailing defendant in Section 1983 actions only where “‘the plaintiff’s action was

frivolous, unreasonable, or without foundation, even though not brought in

subjective bad faith.’” Hughes v. Rowe, 449 U.S. 5, 14 (1980) (quoting Christiansburg

Garment Co. v. E.E.O.C., 434 U.S. 412, 421 (1978)). The Supreme Court has

described this standard as a “stringent” one. Id. The standard is so stringent that

“[t]he plaintiff’s action must be meritless in the sense that it is groundless or without

foundation” for an award of fees to be justified. Id. “The fact that a plaintiff may

ultimately lose his case is not in itself a sufficient justification for the assessment of

fees.” Id. In the Eleventh Circuit, a “plaintiff’s [S]ection 1983 claim should not be

considered groundless or without foundation, when the claim is meritorious enough

to receive careful attention and review.” Busby v. City of Orlando, 931 F.2d 764, 787

(11th Cir. 1991) (citation omitted); Walker v. Nationsbank of Fla. N.A., 53 F.3d 1548,

1559 (11th Cir. 1995).

Weekley Homes’ claims are not groundless or entirely without foundation.

Although this Court finds that Weekley Homes has failed to state a claim upon

which relief can be granted, it does not rise to the required level of frivolity. Weekley

Homes has raised a novel argument regarding developing areas of the law. As a

result and taking into consideration the “stringent” standard required to grant

attorney’s fees in this Circuit, this Court denies Defendants’ request for attorney’s

fees.

IV. Conclusion

Accordingly, it is hereby

ORDERED:

1. Defendants’ Motion to Dismiss (Doc. 49) is GRANTED in part and

DENIED in part as follows:

a. The Motion is GRANTED as to Count I of the Amended

Complaint, which is DISMISSED WITH PREJUDICE.

b. The Motion is DENIED as to Counts II and III of the Amended

Complaint.

c. The Motion is DENIED as to Defendants’ prayer for attorneys’

fees.

2. The Clerk is DIRECTED to REMAND the remaining counts in the

Amended Complaint to the Thirteenth Judicial Circuit Court in and for

Hillsborough County, Florida and to transmit a certified copy of this Order to the

clerk of that court.

3. Thereafter, the Clerk is DIRECTED to close this case.

DONE AND ORDERED in Tampa, Florida, on this 8th day of June, 2022.

A a

Ife □□□ te / 2 oe es

ANA 4p

Jw “) / Vv)

ANTHONY E. PORCELLI

United Sfates Magistrate Judge

cc: Counsel of Record