# Weekley Homes, LLC v. Board of County Commissioners

> District Court, M.D. Florida · June 8, 2022

URL: https://www.frixlaw.com/law-library/cases/10110280

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 8, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10110280

## How later opinions describe it (automated extraction)

- 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”
- 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”

## Opinion text

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.
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ANTHONY E. PORCELLI
United Sfates Magistrate Judge

cc: Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110280. Public record. Not legal advice.