Clewiston Commons LLC v. City of Clewiston

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

CLEWISTON COMMONS, LLC,

Plaintiff,

v. Case No: 2:18-cv-339-JLB-NPM

CITY OF CLEWISTON, MALI

GARDNER, AL PERRY, TRAVIS

REESE, DEBBIE MCNEIL and

KATHY COMBASS,

Defendants.

/

ORDER

This matter is before the Court on Plaintiff’s Motion for Summary Judgment

(Doc. 227) and Defendants’ Motion for Summary Judgment (Doc. 228). Plaintiff and

Defendants responded to one another’s summary judgment motions. (Docs. 229,

230). Plaintiff and Defendants filed replies in support of their respective motions.

(Docs. 231, 232). After careful review of the record, Plaintiff’s motion is DENIED

and Defendant’s motion is GRANTED in part and DENIED in part.

BACKGROUND

This case involves a zoning dispute over the designation of a mobile home

park in Clewiston, Florida. (Doc. 111 at ¶¶ 1–7). Plaintiff sues the City of

Clewiston (the “City”), the City Commissioner and later mayor, Mali Gardner (an

elected official), and four City employees—Al Perry (the City Manager), Travis

Reese (the Community Development Director), Kathy Combass (the City Clerk),1

and Debbie McNeil, the City’s code enforcement officer. (Doc. 111 at ¶¶ 1–2;

Doc. 228 at ¶ 1). Yasir Khan indicated that he is the “point of contact for the

ownership group,” which consists of himself, Mohammed Yasin Khan, and Floyd

Salkey. (Doc. 228-2 at 7).

In 2006, Plaintiff purchased real property located at 810-381 East Sagamore

Avenue, Clewiston, FL 33440 (the “Property”). (Doc. 227 at 2; Doc. 229 at 1;

Doc. 228-2 at 15). The Property was zoned as RM-1, “Mobile Home and

Recreational Vehicle Park District,” which permitted mobile homes and recreational

vehicles. (Doc. 228-3 at 70, 72; Doc. 227-5 at 155; Doc. 228-6 at 19).

In 2007, the Property was rezoned to a General Commercial District. (Doc.

227-21 at 2; Doc. 228-5 at 4, 10; Doc. 228-6 at 19; Doc. 228-7 at 4). Mobile homes

and recreational vehicles are not specifically listed as a permitted use in a property

zoned General Commercial District. (See Doc. 228-6 at 20–21). Plaintiff claims that

it originally sought a special exception. But the City recommended rezoning the

Property and represented that Plaintiff could continue the mobile home use. For

example, Wendell Johnson, the City’s previous City Manager, told Plaintiff’s

representative that the Property “could continue as nonconforming until such time

that he effected the development request and redeveloped it as commercial.”

(Doc. 227-1 at 16, 64–65). And Tommy Perry, a former member of a team that

1 The only claim against Kathy Combass, the Sunshine Law claim (Count VII) was

previously dismissed by this Court.

engineered for the City, testified that “I think he started out asking for a special

exception, and the City said you should rezone, and encouraged the rezoning.”

(Doc. 227-2 at 14, 42). But at the hearing regarding the zoning change, which took

place on January 22, 2007 (at which Plaintiff’s representative was present), the City

Attorney stated that “the Code specified what uses are permitted in the Commercial

district and Special Exceptions could be allowed if certain conditions are met;

otherwise, other uses would be prohibited.” (Doc. 228-7 at 3). Plaintiff

acknowledges that its purported agreement with Mr. Johnson (wherein Plaintiff

would be perpetually allowed a non-conforming use until it decided to develop

commercial property) was never approved by the City Commission or presented at a

hearing. (Doc. 228-2 at 58–59; Doc. 228-3 at 34–35).

Plaintiff’s plan to redevelop the Property changed when the real estate

market crashed and Plaintiff determined that the redevelopment was no longer

feasible. (Doc. 227 at 4; Doc. 227-3 at 55; Doc. 228 at 4). Thus, Plaintiff continued

to use the Property as a mobile home park after the change of zoning designation.

(Doc. 227 at 4; Doc. 229 at 2).

Plaintiff states that between 2015 and 2016, individual residents received

Notices of Violations from the City for various code violations on their respective

units. (Doc. 227 at 5). Defendants admit that the City sent notices of code

violations to individual tenants of the Property in 2015 but there is no record

evidence of any specific notices. (Doc. 229 at 2).

In 2016, the City created the Community Improvement Division, which

removed code enforcement from the police department. (Doc. 227-6 at 36). Debra

McNeil testified that “when [they] first started doing Code Enforcement . . . it

started to come to the forefront . . . that there was heavy blight, and there were

areas that they wanted to begin it with Code Enforcement.” (Id. at 80–82). Ms.

McNeil was directed to focus on the “blighted areas,” which included the Property.

(Doc. 228-9 at 81–84; Doc. 227-6 at 99).

In 2016 and 2017, the City received persistent complaints from Anthony

Perez who, among other things, sent Ms. McNeil emails with photographs and

complaints about various issues, many of which were about Clewiston Commons.

(Doc. 227-6 at 109–12, 181; Doc. 227-7 at 1, 5–36). Ms. McNeil testified that she

had spoken with Mali Gardner about the area where Clewiston Commons was

located as well. (Doc. 227-6 at 180).2 Ms. McNeil issued numerous citations at the

Property, most of which were resolved or cancelled. (Doc. 228 at 5; Doc. 228-19 at

1–6). Mr. Khan testified that Plaintiff “spent tens of thousands of dollars” to “clean

2 In an email to Ms. Gardner, Mr. Perez commented that even if RVs are allowed in

an area zoned for mobile homes, “they can be made to remove the structure or not

allowed the electrical connection when they go to rent the structure. This will drive

them out of business which should be the goal.” (Doc. 227-8 at 1). Ms. Gardner

responded that “they are working on those issues to place pressure but . . . it’s been

many years since any of the issues have been addressed” and that certain

individuals were “both committed to cleaning up Clewiston by compliance and to

have a working code enforcement process.” (Id.) Mayor Gardner testified during

her deposition that “recreational vehicles in . . . mobile home parks, they are

disgusting. They have additions on them, they have all kinds of things trying to

make them a home, and they are not a home. That is my opinion. So there is harm

. . . to a community.” (Doc. 227-10 at 74).

up” the code violations. (Doc. 227-3 at 78). More specifically, Mr. Khan testified

that Plaintiff has suffered “loss of income” and “loss of ability to raise [the] rents

because [it] can’t move anybody out.” (Id. at 84).

In 2016, Plaintiff applied for a special exception to operate, repair, and

replace units within the Property. (Doc. 227-3 at 53–54; Doc. 228-20 at 1). Mr.

Khan testified that the City planned to allow Plaintiff to continue operating the

mobile home park but it would not allow Plaintiff to put in new mobile homes if one

fell into disrepair or someone moved. (Id. at 54–55). Mr. Charles Schoech, the

former City attorney, testified that the City’s underlying reason for no longer

permitting replacement of units was that:

There was a lot of discussion in the town regarding the

appearance of the trailers and mobile homes in the part.

And the typical discussion was that it was an eyesore. And

so the City began enforcing the codes more than they had

in the past. And there was a request by an attorney in

town, which came through the mayor, to have stronger

enforcement in this area because of the appearance.

(Doc. 227-11 at 23). Mr. Schoech further testified that “Mr. Reese was instructed

not to issue any more permits for the replacement of mobile homes” and that it was

his “understanding that that request came through the city manager and was

specifically implemented by Mali Gardner.” (Id. at 68).

Plaintiff’s request for a special exception was set for a public hearing in May,

tabled until July, and then tabled again. (Doc. 227-5 at 141–44). Before the August

meeting, Travis Reese prepared a report for the City Commission stating that “[t]he

use of a mobile home park is a legal non-conforming use. The applicant wishes to

continue the use of a mobile home park in this area so as older trailers leave, they

can be replaced. The city cannot permit replacement of mobile homes in the

commercial zoning district.” (Doc. 228-5 at 10). Mr. Reese did not make a

recommendation, instead stating that “[s]taff leaves the decision to board

discretion.” (Id.)

On August 15, 2016, the City Commission held its monthly meeting.

(Doc. 227-14 at 2). Mr. Khan was not present. (See id.) He indicated that he

believed that the hearing was set for September. (Doc. 228-2 at 71). At the hearing,

it was noted that “[t]he City cannot permit replacement of mobile homes with the

commercial zoning in place” and Mali Gardner noted that “at the Planning and

Zoning Board Meeting May 2, 2016, the recommendation was this special exception

be denied.” (Doc. 227-14 at 3). A notice addressed to Zahra Khan indicated that

“[a]t their regular meeting on August 15, 2016, the City Commission considered

your application and denied your request for a special exception.”

(Doc. 228-30 at 1).

Mr. Khan admits that he knew in August 2016 that Plaintiff’s special

exception request was denied. (Doc. 228-2 at 72). He “felt like [Plaintiff was] just

being railroaded at the time” and had a “feeling [Plaintiff was] being pushed

through a process.” (Id. at 72–73). When asked whether he felt that it was not

worth his time to appeal, Mr. Khan stated that Plaintiff was “the little guy” and

that it was a “fox guarding the henhouse situation.” (Id. at 73). Plaintiff did not

request a reconsideration or file an appeal to Florida courts with respect to the

denial of its special exception request. (Id. at 72–73; Doc. 228 at 7; Doc. 230 at 3).

Ms. McNeil testified that in 2017, she discovered that Clewiston Code section

50 provides that “except in zoning use districts RM-1 and RM-2, no person shall

occupy, use or locate a mobile home in any place other than a regularly licensed

mobile home park.” (Doc. 228-9 at 198). It further states that “no existing mobile

home which is located outside of a regularly licensed mobile home park shall be

replaced with another mobile home as such time as the present one is removed or

damaged beyond repair and/or becomes unsafe.” (Id.) Finally, the Clewiston Code

states that “[o]ccupancy of existing mobile home as permitted by subsection one of

this section shall nevertheless be limited to the person in whom legal or equitable

title to the real estate on which the mobile home is located.” (Id.) She states that

she sent an email to the City’s attorney asking him to review the ordinance and

provide his “opinion of its interpretation relative to Clewiston Commons, which is a

non-conforming mobile home park.” (Id. at 202). Ms. McNeil was concerned that

she had missed an obvious violation for Clewiston Commons. (Id. at 207).

Having determined that, in her opinion, the mobile park’s operation itself

was a code violation, in October 2017, Ms. McNeil drafted two notices of violation

(the “Termination Notices”) demanding that Plaintiff cease operating its mobile

home park because it conflicted with the commercial zoning designation.

(Id. at 233; Doc. 228-31). There were now two competing understandings of

Plaintiff’s property within the City: Mr. Reese believed that the Property was a

legal nonconforming use, such that the mobile home park could remain but not

expand via replacement of older trailers; Ms. McNeil believed that the existence of

the mobile home park in a property zoned for commercial use was, by definition, a

code violation. (Compare Doc. 228-5 at 10 with Doc. 228-9 at 198–214).

The Termination Notices issued by Ms. McNeil provided Plaintiff with 180

days from receipt to correct the issues. (Doc. 228-31 at 2). But Plaintiff disputed

the Termination Notices, which triggered a hearing with the Special Magistrate for

Code Enforcement. (Doc. 24-6 at 2). The hearing was scheduled for May 16, 2018.

(Id.) On May 14, 2018, Plaintiff filed the instant case. (See Doc. 1).

In October 2018, the Special Magistrate held the necessary hearing.

(Doc. 228-32). The Special Magistrate concluded that he lacked jurisdiction to rule

on a legal issue such as whether a specific mobile home park is a legal non-

conforming use and ordered Plaintiff to remove all mobile homes and cease the use

of the subject properties as a mobile home park 180 days from the date of the order,

which was October 30, 2018. (Doc. 228-32 at 2–3).

Plaintiff appealed the Special Magistrate’s decision to the Circuit Court in

Hendry County. (See Doc. 228-33). In March 2019, the parties filed a joint stay of

the state court case because the matters at issue in the state court case were the

same as those in this litigation. (Id.) And the City agreed to withhold action on the

Termination Notices pending resolution of this litigation. (Id. at 2).

The Fourth Amended Complaint, which is the operative complaint here, was

filed on September 24, 2019. (Doc. 111). Upon Defendant’s motion to dismiss (Doc.

117), the Court dismissed Count II (the federal due process claim) without prejudice

pending the state court case’s outcome. (Doc. 145 at 7–8). The parties filed cross-

motions for summary judgment in this matter in January 2020. (See Docs. 137,

154, 159, 161). The Court disposed of some of the claims via summary judgment

but found that the remaining claims would not become ripe until after certain

issues were resolved at the state court level. (See Doc. 189). Specifically, the Court

granted summary judgment to the City on Count I (the equal protection claim) only

as to the request for a special exception, and as to the individual Defendants based

on qualified immunity. (Id. at 3–5). The Court also granted summary judgment as

to Count III (Florida state due process) solely as to the building permits and special

exception (Id. at 6–7). Finally, the Court granted summary judgment as to Count

VII. (Id. at 10–11).

Shortly thereafter, the parties filed a joint motion requesting a stay of this

case pending resolution of the state court case. (Doc. 190 at 1). The Court granted

that motion and issued a stay. (Doc. 191).

On May 2, 2022, the Circuit Court of Hendry County rendered its order. (Doc.

198-3 at 3). The Circuit Court found that the City, upon notice to Plaintiff, “had the

right, at any point, to withdraw their permission to replace the trailers” and that

the City was “within their right to inform [Plaintiff] that they would no longer be

permitted to replace decrepit trailers with new trailers.” (Id. at 4–5). The Circuit

Court further stated that no replacement trailers would be allowed because the City

has given notice that they have withdrawn their permission to replace the trailers,

that the non-conforming use “must be allowed to continue until the property ceases

to be used as a trailer park” and that Plaintiff “is not permitted to extend th[e] life

of this nonconforming use by replacing trailers or by taking any other action that

would be in violation of city code.” (Id. at 5–6). Plaintiff indicated that there had

been no further appeal of the Special Magistrate’s order. (Doc. 198 at 3).

Plaintiff sought rehearing and/or clarification of the May 2, 2022 opinion.

(Id.; see also Doc. 198-4 at 2). The Florida Circuit Court clarified, on July 15, 2022,

that its prior ruling “disagree[d] with the Magistrate’s conclusion that replacement

of old mobile homes with new mobile homes does not extend the non-conforming

use.” (Doc. 198 at 3; Doc. 198-4 at 3). In other words, the Circuit Court held that

while the City cannot force the removal of usable mobiles homes from Plaintiff’s

property, replacement of old mobile homes with new mobile homes would extend

the non-conforming use, which is not permissible. (Doc. 198-4 at 3).

Plaintiff then filed a Petition for Writ of Certiorari with the Florida Second

District Court of Appeal on August 11, 2022. (Doc. 198 at 3). The Petition for Writ

of Certiorari was transferred to the newly created Sixth District Court of Appeal in

January 2023. (Id. at 4). On April 20, 2023, the appellate court denied the Petition

for Writ of Certiorari and the mandate was issued on May 11, 2023. (Id.) Plaintiff

thus represented to this Court that there were no further pending appellate matters

requiring resolution and requested a lift of the stay of this matter. (Id.) On May

15, 2023, Plaintiff filed a motion to lift the stay in this matter (Doc. 198), which this

Court granted on June 21, 2023.

On December 11, 2023, Plaintiff and Defendants filed cross-motions for

summary judgment. (Docs. 227, 228). These motions are before the Court now for

adjudication.

LEGAL STANDARD

Summary judgment is appropriate when “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). A dispute is genuine “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A material fact is one that “might affect the outcome of

the suit under the governing law.” Id. “[A] mere scintilla of evidence” does not

create a genuine issue of material fact, so a nonmoving party may not simply state

that “the jury might, and legally could, disbelieve the moving party’s evidence.”

Hinson v. Bias, 927 F.3d 1103, 1115–16 (11th Cir. 2019) (citation and internal

quotation marks omitted).

Courts may not make credibility determinations or weigh the evidence when

reviewing the record. Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir.

2010) (“On summary judgment . . . [n]either [the Eleventh Circuit] nor the district

court are to undertake credibility determinations or weigh the evidence.”). Instead,

courts view evidence and draw all reasonable inferences in the nonmoving party’s

favor. Rojas v. Florida, 285 F.3d 1339, 1341–42 (11th Cir. 2002). But an “inference

is not reasonable if it is ‘only a guess or a possibility,’ for such an inference is not

based on the evidence but is pure conjecture and speculation.” Id. at 1324.

DISCUSSION

I. Count I: Equal protection under 42 U.S.C. § 1983.

Plaintiff’s equal protection claim is a “class of one” claim because it “allege[]s

not that [Plaintiff] belongs to a protected class, but that [it] is the only entity being

treated differently from all other similarly situated entities.” Chabad Chayil, Inc. v.

School Bd. of Miami-Dade Cnty., 48 F.4th 1222, 1223 (11th Cir. 2022).3 To prevail

on this claim, Plaintiff must show that it “has been intentionally treated differently

from others similarly situated and that there is no rational basis for the difference

in treatment.” Id. (quoting PBT Real Est., LLC v. Town of Palm Beach, 988 F.3d

1274, 1285 (11th Cir. 2021)).

“[D]ifferent treatment of dissimilarly situated persons does not violate the

equal protection clause.” PBT Real Est., LLC, 988 F.3d at 1285 (quoting Campbell

v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006)). And the Eleventh Circuit

3 In its response to Defendants’ motion for summary judgment, Plaintiff changes

course and states that this is not a selective enforcement case and thus a similarly

situated comparator is not necessary. (Doc. 230 at 8–9). But the Fourth Amended

Complaint is clearly a selective enforcement claim, (see Doc. 111 at ¶¶ 81–95).

Indeed, Plaintiff’s own motion for summary judgment states that “[t]his type of

equal protection claim is essentially a selective enforcement claim that, a city’s

ordinance was applied to one person and not other persons similarly situated” (Doc.

227 at 31). Plaintiff will not be permitted to suddenly change course in its response

to Defendants’ summary judgment motion. See White v. Beltram Edge Tool Supply,

Inc., 789 F.3d 1188, 1200 (11th Cir. 2015) (“Despite the liberal pleading standard

for civil complaints, plaintiffs may not raise new claims at the summary judgment

stage. . . . At the summary judgment stage, the proper procedure for plaintiffs to

assert a new claim is to amend the complaint. . . . A plaintiff may not amend her

complaint through argument in a brief opposing summary judgment”) (quoting

Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314–15 (11th Cir. 2004) (per

curiam) (internal quotation marks omitted).

applies the similarly situated requirement “with rigor.” Chabad Chayil, Inc., 48

F.4th at 1223 (quoting Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1207 (11th Cir.

2007)). The entities compared must be “prima facie identical in all relevant

respects.” Id. (citing PBT Real Est., LLC, 988 F.3d at 1285).

“Too broad a definition of ‘similarly situated’ could subject nearly all state

regulatory decisions to constitutional review in federal court and deny state

regulators the critical discretion they need to effectively perform their duties.”

Griffin Indus., Inc., 496 F.3d at 1203. “Conversely, too narrow a definition of

‘similarly situated’ could exclude from the zone of equal protection those who are

plainly treated disparately and without a rational basis.” Id. Thus, “[a] plaintiff

must ultimately show that it and any comparators are similarly situated in light of

all the factors that would be relevant to an objectively reasonable governmental

decisionmaker.” Chabad Chayil, Inc., 48 F.4th at 1223 (internal quotation marks

omitted) (quoting Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1275 (11th Cir.

2008)). In evaluating this requirement, courts consider 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 action.” Burns

v. Town of Palm Beach, 999 F.3d 1317, 1352 (11th Cir. 2021) (quoting Campbell,

434 F.3d at 1314).

The Court previously found that defendants Gardner, Perry, Reese, and

McNeil are entitled to qualified immunity as to this claim. (Doc. 189 at 5). The

Court also rejected Plaintiff’s contention that similarly situated comparators were

granted special exceptions to the zoning law. First, the alleged comparator,

Clewiston Marina, was a zoned high-density residential, while Plaintiff is zoned

commercial. (Id. at 4). Second, even if Plaintiff could meet its burden of alleging a

similarly situated comparator, the City provided legitimate government purposes to

plausibly explain its actions, such as reducing blight and creating a cohesive

neighborhood. (Id.) The Court reserved its decision on all other aspects of this

claim because they were not yet ripe due to the pending state court action.

(Id. at 3–4). As a threshold matter, the Court finds that all issues within this claim

are now ripe here because all appeals of this matter in state court have been

resolved. (Doc. 198 at 3–4).

Plaintiff and the City cross-move for summary judgment as to this claim.

Plaintiff argues that the Court should grant it summary judgment because “the City

has acted intentionally, arbitrarily, and maliciously in attempting to prevent

Plaintiff from the lawful use of the Property and denying Plaintiff equal protection

of the law afforded to all other similarly situated property owners in the City”

(Doc. 227 at 30–39), while Defendant argues that Plaintiff has not identified a valid

comparator and that the City’s actions are supported by a legitimate government

interest (Doc. 228 at 14–19).

The Court begins its analysis by deciding whether Plaintiff has identified any

similarly situated comparators. Plaintiff identifies several properties that it

maintains are similarly situated comparators that “have been identified by the City

as those who have been allowed to continue their non-conforming use and unlike

Plaintiff, have not been issued Notices of Violation to cease operation.” (Doc. 227 at

21). For example, Roland Martin Lake Side RV Park, Roland Martin RV Park, and

Aztec Mobile Home Park are properties zoned either R-3 (multiple-family

residential district) or Industrial but permitted to be used as mobile home and/or

RV park (the “Mobile Home Park Comparators”). (Id. at 20–21). Four other

properties identified by Plaintiff are zoned either Commercial or Residential but

permitted to be used as Single Family Residential or Agricultural (the “Other

Comparators”). (Id. at 21).

Defendants argue that the Mobile Home Park Comparators are not similarly

situated because none of them are zoned Commercial like Plaintiff. (Doc. 229 at

11). The Court agrees. The Mobile Home Park Comparators are located in different

zones from Plaintiff, which serve different zoning interests from Plaintiff’s zone, and

thus are not “similarly situated” to Plaintiff in all relevant respects. See Fla.

Teepee, LLC v. Walton Cnty., Fla., Case No. 3:22cv20588-TKW-ZCB, 2022 WL

19573772, at *2 (N.D. Fla. Dec. 16, 2022) (concluding that “the comparator

properties that were allegedly treated differently than Plaintiffs’ property are in

different zoning categories—and, thus, not similarly situated ‘in all relevant

respects’”); Sephardi v. Town of Surfside, No. 99-1566-CIV, 2003 WL 25728156, at

*1 (S.D. Fla. Jan. 6, 2003) (“The fact that the [properties] are located in different

zones, which serve different zoning interests, prevents them from being considered

to be ‘similarly situated’ for purposes of determining whether [defendant’s]

enforcement of its zoning laws was discriminatory. The Court can envision

circumstances in which the type of zone in which an entity is located could dictate

whether a city would choose to allow a nonconforming use”). Indeed, in the previous

summary judgment order in this matter, the Court found that Clewiston Marina,

Inc. was not a similarly situated comparator, in part because Clewiston Marina was

zoned high-density residential, while Clewiston Commons was zoned commercial.

(Doc. 189 at 4).

The Other Comparators are also not adequately similarly situated to

Plaintiff.4 Three of the Other Comparators are zoned Commercial but permitted for

use as Single Family Residential. (Doc. 227 at 21). While the Property is also zoned

Commercial, the Property and these potential comparators are being used for

different non-conforming purposes; thus, they are not similarly situated

comparators. See Campbell, 434 F.3d at 1314–15 (“In any type of zoning situation,

the use of the proposed development is quite relevant. . . . Because the [plaintiffs]

sought to build a large residential complex, it would be in error for the court to

consider commercial developments that sought tentative approval to be considered

similarly situated.”). The last of the Other Comparators is zoned Residential but

permitted to be used as Agricultural. (Doc. 227 at 21). Plainly, for the same

reasons as the Mobile Home Park Comparators and the rest of the Other

Comparators, that alleged comparator is not similarly situated to Plaintiff.

4 There is a dispute over whether the evidence of Other Comparators is admissible.

(Doc. 229 at 8–10; Doc. 231 at 2–3). Because the Court finds that the Other

Comparators are not similarly situated comparators, it need not address this

dispute.

Plaintiff points to two out-of-circuit cases, seemingly in support of its

argument that the comparators are similarly situated. (Doc. 227 at 33–34).

Although these cases are not mandatory authority for this Court, the Court has

considered them in its analysis and found that they are not persuasive on the issues

in this matter.

In Eternal Investments, LLC v. City of Lee’s Summit, No. 05-0521-CV-W-FJG,

2007 WL 679883 (W.D. Mo. 2007), a court granted summary judgment to a

developer on its equal protection claim where, according to Plaintiff’s summary,

plaintiff “presented evidence that every other developer that applied to rezone

property in the preceding 10 years had been successful and that their properties

had similar characteristics to the plaintiff’s tracts of land.” (Doc. 227 at 33). But in

that case, the plaintiff stated that “every other applicant who sought rezoning from

AG to R-1, got their property rezoned as requested,” except plaintiff. Eternal

Investments, LLC, 2007 WL 679883, at *4 (emphasis added). Here, Plaintiff has

provided no comparator that is both zoned Commercial and is being used as a

mobile home or RV park. Unlike here, the plaintiff in Eternal Investments further

provided details about how certain tracts of land were nearly identical to its tract of

land. Id. No such evidence has been presented here.

In Fortress Bible Church v. Feiner, 694 F.3d 208 (2d Cir. 2012), the Second

Circuit found that where “the issues compared are discrete and not cumulative or

affected by the character of the project as a whole, multiple comparators are

sufficient so long as the issues being compared are so similar that differential

treatment with regard to them cannot be explained by anything other than

discrimination.” 694 F.3d at 222–23 (emphasis added). In that case, a church’s

application was denied purportedly because of “a recently enacted ‘steep slope’

zoning ordinance, stress on the police and fire departments, retaining walls that

constituted an attractive nuisance, and traffic and parking problems.” Id. at 223.

In other words, the application in that case was denied for discrete issues that did

not spur denials in other applications containing similar discrete issues. Id. The

character of the project as a whole was not at issue. Id. Here, however, the

issuance of the Termination Notices, the denial of a special exception, and the

denial of replacement permits all occurred because Plaintiff was operating a mobile

home and RV park in a property zoned Commercial, which this Court finds is an

issue affected by the character of the project as a whole. Thus, similarly situated

comparators would also have to be operators of mobile homes in commercial zones.

Accordingly, the analysis in Fortress Bible Church is not helpful to Plaintiff here.

Because the “similarly situated” requirement must be enforced with rigor, the

Court finds that neither the Mobile Home Park Comparators nor the Other

Comparators is similarly situated to Plaintiff. See Chabad Chayil, Inc., 48 F.4th at

1223 (“We apply the similarly situated requirement with rigor”) (internal quotation

marks and citations omitted); see also Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st

Cir. 2007) (“The ‘similarly situated’ requirement must be enforced with particular

rigor in the land-use context because zoning decisions ‘will often, perhaps almost

always, treat one landowner differently from another”) (quoting Vill. Of

Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (Breyer, J., concurring); Lindquist v.

City of Pasadena, Tex., 656 F. Supp. 2d 662, 688 (S.D. Tex. 2009) (high showing of

similarity required because “unless carefully circumscribed, the concept of a class-

of-one equal protection claim could effectively provide a federal cause of action for

review of almost every executive and administrative decision made by state actors”)

(quoting Jennings v. City of Stillwater, 383 F.3d 1199, 1210 (10th Cir. 2004)).

Because no reasonable jury could find that a similarly situated comparator

exists in this matter, the Court need not address whether there was a rational basis

for the City’s treatment of Plaintiff. The Court notes, however, that it previously

determined that “[e]ven if Clewiston Commons could meet its burden of alleging a

similarly situated comparator, the City provides legitimate government purposes to

plausibly explain its actions, such as reducing blight and creating a cohesive

neighborhood.” (Doc. 189 at 4 (citing Corn v. City of Lauderdale Lakes, 997 F.2d

1369, 1387 (11th Cir. 1993)). Because no reasonable jury could find that Plaintiff

identified a similarly situated comparator, the Court grants summary judgment to

the City as to the equal protection claim.

II. Count II: The federal due process claim.

Count II was dismissed without prejudice pending the outcome of the state

court case. (Doc. 145 at 7–8). Plaintiff has not pursued reinstatement of this claim.

Accordingly, the Court finds that Plaintiff has abandoned this claim.

III. Count III: State law procedural due process claim.

The Florida Constitution’s due process clause provides, “[n]o person shall be

deprived of life, liberty or property without due process of law.” Fla. Const. art. I,

§ 9. “Procedural due process imposes constraints on governmental decisions that

deprive individuals of liberty or property interests.” Massey v. Charlotte Cnty., 842

So. 2d 142, 146 (Fla. 2d DCA 2003). It “serves as a vehicle to ensure fair treatment

through the proper administration of justice where substantive rights are at issue.”

Dep’t of Law Enforcement v. Real Prop., 588 So. 2d 957, 960 (Fla. 1991). Procedural

due process “requires both fair notice and a real opportunity to be heard.” Keys

Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So. 2d 940, 948

(Fla. 2001). The notice must convey the requisite information to the parties affected

and it must afford the parties an appropriate amount of time to make their

appearance. Id. “The specific parameters of the notice and opportunity to be heard

required by procedural due process are not evaluated by fixed rules of law, but

rather by the requirements of the particular proceeding.” Id. (citing Gilbert v.

Homar, 520 U.S. 924 (1997)). “Due process is flexible and calls for such procedural

protections as the particular situation demands.” Schimenti v. School Bd. of

Hernando Cnty., 73 So. 3d 831, 833 (Fla. 5th DCA 2011). Defendant moves for

summary judgment on this count, but Plaintiff does not. (Doc. 228 at 19–21).

Plaintiff’s state law procedural due process claim consists of several

components, but the Court’s previous order granted summary judgment to the City

as to the entirety of the claim other than as to the Termination Notices. (Doc. 189

at 5–7). Accordingly, the Court now considers whether the City failed to provide

due process because Plaintiff did not have an adequate opportunity to be heard

before the Termination Notices were issued and whether the fact that the

Termination Notices lacked information about Plaintiff’s opportunity to object

constitutes a failure to provide due process.

First, it does not appear that Plaintiff was ever actually deprived of liberty or

property because of the Termination Notices. Plaintiff admits that the City agreed

not to take any action to enforce the Termination Notices while the state court

action was pending. (Doc. 228-33 at ¶ 5; Doc. 228 at ¶ 41; Doc. 230 at ¶ 41). And

the state court ultimately ruled that “the City of Clewiston cannot force the removal

of all usable mobile homes from Clewiston Commons property.”

(Doc. 227-23 at 2). Accordingly, there is no record evidence that any deprivation of

liberty or property occurred. Thus, Plaintiff’s claim must fail as a matter of law.

See Fla. Const. art. I, § 9. See Cleveland Bd. of Educ. v. Loudermill 470 U.S. 532,

542 (1985) (due process requires “that a deprivation of life, liberty, or property be

preceded by notice and opportunity for hearing appropriate to the nature of the

case”) (emphasis added) (quotation marks omitted). Plaintiff insists that it should

have been given an opportunity to challenge the Termination Notices before they

were issued, but even if Plaintiff was deprived of some liberty or property at some

point, there is certainly no evidence in the record that the Termination Notices

themselves deprived Plaintiff of any liberty or property and Plaintiff has provided

no case law or non-conclusory argument supporting otherwise.

Even if the Termination Notices had eventually deprived Plaintiff of liberty

or property, Plaintiff “was afforded, and actually utilized, full judicial procedures to

challenge” the City’s decisions. See City of Pompano Beach v. Yardarm Restaurant,

Inc., 934 So. 2d 861, 866 (Fla. 4th DCA 2002) (citing Boatman v. Town of Oakland,

76 F.3d 341 (11th Cir. 1996) (holding that property owners’ civil rights action

against a town for its refusal to issue them a certificate of occupancy did not fall

under the procedural component of § 1983 because the state provided them all the

process they were due, i.e., the right to repair to the circuit court and seek an order

compelling a final inspection)).5

It is undisputed that Plaintiff had a hearing with the Special Magistrate for

Code Enforcement. (Doc. 24-6 at 2). After this Court granted summary judgment

in part and found that the remainder of the claims were not ripe until after certain

issues were resolved at the state court level (Doc. 189), the parties stayed this

matter and went through the state court process. (See Doc. 190).

5 There are significant similarities between the due process clauses of the United

States and Florida Constitutions, making analyses of claims arising from each

substantially similar to the other. See Persaud Properties FL Investments, LLC v.

Town of Fort Myers Beach, Florida, 658 F. Supp. 3d 1072, 1079 (M.D. Fla. 2023),

appeal dismissed, 23-10881-DD, 2023 WL 6141293 (11th Cir. Aug. 14, 2023);

DuPont Hollywood Ltd. v. City of Hollywood, Fla., Case No: 06-60697-CIV-

MORENO, 2006 WL 8432519, at * 2 (S.D. Fla. Oct. 17, 2006) (noting that the facts,

burdens of proof, and analysis with respect to the due process clauses of the United

States Constitution and the Florida Constitution are substantially similar)

(citation omitted)); cf. Dep’t of Law Enforcement v. Real Prop., 588 So. 2d 957, 960

(Fla. 1991) (explaining that under both the Florida Constitution and the United

States Constitution, “procedural due process serves as a vehicle to ensure fair

treatment through the proper administration of justice where substantive rights are

at issue”).

First, the Circuit Court found that the Special Magistrate improperly

concluded that he could not make a determination of the law as to Clewiston

Commons’ legal nonconforming use. (Doc. 227-20 at 1–2). The Special Magistrate

then spent two days reviewing exhibits and hearing testimony, after which the

Special Magistrate found, in relevant part, that the continued mobile home park

use is permissible as a legal non-conforming use. (Doc. 227-21 at 1–9). The Circuit

Court affirmed as to that part of the Special Magistrate’s order. (Doc. 227-22 at 5).

The Circuit Court then reiterated, in a final order, that Plaintiff’s non-conforming

use “must be allowed to continue until the property ceases to be used as a trailer

park.” (Doc. 227-23 at 1–2). Given this procedural history demonstrating both the

requisite notice and opportunity to be heard components of procedural due process

no reasonable jury could find that Plaintiff was deprived of procedural due process.

Furthermore, Plaintiff provides no case law supporting its theory that the due

process it received took too long. (Doc. 230 at 11).

In sum, the Court finds that no deprivation of property ever occurred.

Moreover, Plaintiff plainly had the opportunity to challenge the Termination

Notices before any potential deprivation could occur and it successfully did so.

Accordingly, the Court grants summary judgment to Defendant on this count.

IV. Count IV: Inverse condemnation/takings claim.

“Inverse condemnation is a cause of action by a property owner to recover the

value of property that has been de facto taken by an agency having the power of

eminent domain where no formal exercise of that power has been undertaken.”

Osceola Cnty. v. Best Diversified, Inc., 936 So. 2d 55, 59–60 (Fla. 5th DCA 2006)

(citations omitted). Plaintiff’s inverse condemnation claim arises under both the

Fifth Amendment of the United States Constitution and under Article X of the

Florida Constitution. (Doc. 111 at ¶ 110).

Under Article X, Section 6(a) of the Florida Constitution, “[n]o private

property shall be taken except for a public purpose and with full compensation

therefor paid to each owner[.]” To plead a sufficient takings claim under the Florida

Constitution, a plaintiff must allege that the government either (1) required him to

submit to a temporary or permanent physical occupation of his land or (2) enacted a

regulation or imposed a condition that deprived him of all economically beneficial

use of his land. Fla. Fish & Wildlife Conservation Comm’n v. Daws, 256 So. 3d 907,

914 (Fla. 1st DCA 2018). The Takings Clause of the Fifth Amendment provides

that property shall not “be taken for public use, without just compensation.” U.S.

Const. amend. V. Courts within the Eleventh Circuit “analyze claims under the

[Fifth Amendment’s] Takings Clause and Article 10, Section 6 of the Florida

Constitution under the same legal standard.” Megladon, Inc. v. Vill. of Pinecrest,

661 F. Supp. 3d 1214, 1239 n.16 (S.D. Fla. 2023) (citation omitted); see also

Chmielewski v. City of St. Pete Beach, 890 F.3d 942, 949 (11th Cir. 2018) (“Because

Florida follows federal takings law, we can look to cases brought under the Fifth

Amendment to inform our analysis.”).

Takings may be categorical or regulatory. Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Plan. Agency, 535 U.S. 302, 322–23 (2002). Categorical takings occur

when the government “physically takes possession for an interest in property for

some public purpose” and thus has a “categorical duty to compensate the former

owner.” Id. (citation omitted). Regulatory takings, on the other hand, stem from

government regulation that “goes too far” and thus are recognized as takings.

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537–38 (2005). Regulatory takings

require “essentially ad hoc, factual inquiries . . . designed to allow careful

examination and weighing of all the relevant circumstances.” Tahoe-Sierra Pres.

Council, Inc., 535 U.S. 302, 322 (2002) (quotation marks and citation omitted). The

distinction is between acquisitions of property for public use (a categorical taking)

and regulations prohibiting private uses (a regulatory taking). Id. at 323–24.

Importantly, “[l]and-use regulations are ubiquitous and most of them impact

property values in some tangential way—often in completely unanticipated ways.”

Id. at 324. And “[t]reating them all as per se takings would transform government

regulation into a luxury few governments could afford.” Id.

A regulation which completely deprives an owner of “all economically

beneficial us[e]” of his property, however, will constitute a per se taking under the

Fifth Amendment. Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1019

(1992) (emphasis in original). “[T]he government must pay just compensation for

such ‘total regulatory takings,’ except to the extent that ‘background principles of

nuisance and property law’ independently restrict the owner’s intended use of the

property.” Lingle, 544 U.S. at 538 (citing Lucas, 505 U.S. at 1026–32).

Plaintiff and the City have each moved for summary judgment on this count.

(Doc. 227 at 41–43; Doc. 228 at 21–30). Plaintiff argues that the City’s actions with

respect to the Property, including the City’s denial of Plaintiff’s permits,

enforcement of corrective actions, denial of the Special Exception application and

issuance of the Termination Notices have had and continue to have a detrimental

economic effect on Plaintiff and unreasonably interfere with Plaintiff’s reasonable

use of the Property. (Doc. 227 at 41; Doc. 111 at ¶¶ 110, 115). Defendant agrees

that Plaintiff possesses a cognizable Fifth Amendment property interest in the

continued use of its land as a trailer park but argues that Plaintiff had no

cognizable property interest related to the special exception and building permits

and because the Termination Notices never went into effect. (Doc. 228 at 22–30).

Although Plaintiff summarily states that “each and all [of the City’s actions]

deprive Plaintiff of all or substantially all economic, beneficial use of the Property,”

Plaintiff has not proffered any evidence of deprivation of all economic, beneficial

use of the Property. (See Doc. 227 at 41). For example, Mr. Khan testified that

Plaintiff has “suffered loss of income” and “loss of ability to raise [it]s rents because

[it] can’t move anybody out.” (Doc. 227-3 at 83). But that does not amount to a

deprivation of all economically beneficial use. See Lingle, 544 U.S. at 539 (“In the

Lucas context, . . . the complete elimination of a property’s value is the

determinative factor”); Lucas, 505 U.S. at 1019 n.8 (“[I]n at least some cases the

landowner with 95% loss will get nothing, while the landowner with total loss will

recover in full. . . . Takings law is full of these ‘all-or-nothing’ situations.”). Indeed,

the Supreme Court has found that “mere diminution in the value of property,

however serious, is insufficient to demonstrate a taking.” Concrete Pipe and Prods.

of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 645 (1993).

Because the Court has determined that Plaintiff has not been deprived of all

economically beneficial use of the Property, the Court will engage in an ad hoc,

factual inquiry to determine whether a taking took place. See Tahoe-Sierra Pres.

Council, Inc., 535 U.S. at 322. “In deciding whether a particular governmental

action has effected a taking, [courts] focus[] both on the character of the action and

on the nature and extent of the interference with rights in the parcel as a whole . . .

.” Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 130–31 (1978). There

is “no magic formula enabl[ing] a court to judge, in every case, whether a given

government interference with property is a taking. In view of the nearly infinite

variety of ways in which government actions or regulations can affect property

interests, the Court has recognized few invariable rules in this area.” Arkansas

Game & Fish Comm’n v. United States, 568 U.S. 23, 31 (2012).

The Supreme Court has identified several factors that have particular

significance in the Court’s inquiry. See Penn Cent. Transp. Co. v. City of New York,

438 U.S. 104, 124 (1978). “The economic impact of the regulation on the claimant

and, particularly, the extent to which the regulation has interfered with distinct

investment-backed expectations are . . . relevant considerations.” Id. (citation

omitted). “So, too, is the character of the governmental action. A ‘taking’ may more

readily be found when the interference with property can be characterized as a

physical invasion by government . . . than when interference arises from some

public program adjusting the benefits and burdens of economic life to promote the

common good.” Id.

In applying the Penn Central factors, the Eleventh Circuit has advised that,

“[a] reduction in value alone will not constitute a taking.” Dirt, Inc. v. Mobile Cnty.

Comm’n, 739 F.2d 1562, 1566 (11th Cir. 1984). “[A]n otherwise valid exercise of the

police power is not a taking simply because the regulation deprives the owner of the

most beneficial use of his or her property.” Rymer v. Douglas Cnty., 764 F.2d 796,

801 (11th Cir. 1985). The “Penn Central inquiry turns in large part, albeit not

exclusively, upon the magnitude of a regulation’s economic impact and the degree to

which it interferes with legitimate property interests.” Lingle, 544 U.S. at 539–40.

Even if Plaintiff is correct that the City’s actions have made the use of the Property

as an income-producing mobile home park less fruitful or more difficult, there is

simply no evidence in the record that the City’s actions have created a reduction in

value of the Property itself.

Perhaps anticipating this result, Plaintiff states for the first time in its

response to Defendants’ motion for summary judgment that “there are questions of

material fact regarding the impact of the City’s actions on Plaintiff’s use

expectations and therefore, summary judgment cannot be entered in Defendants’

favor.” (Doc. 230 at 15). But discovery in this matter has closed and Plaintiff points

to no evidence whatsoever of the economic impact on the Property other than Mr.

Khan’s testimony that Plaintiff has “suffered loss of income, loss of ability to raise

[the] rents because [they] can’t move anybody out.” (Doc. 227-3 at 83). As such,

Plaintiff has failed to submit competent evidence to show that there has been

economic impact on the Property that would rise to the level of a taking. See

Samuel v. Granite Servs. Int’l, Inc., No. 8:15-CV-2072-T-33TGW, 2016 WL

11493322, at *9 (M.D. Fla. Nov. 23, 2016) (“[I]t is the party opposing summary

judgment, and not the Court, that bears the burden of perusing the record to find

evidence creating genuine issues of material fact”) (citation omitted); Lusco v. Univ.

Realty of Tampa, No. 8:13-cv-420-T-33EAJ, 2014 WL 1152934, at *6 (M.D. Fla. Mar.

21, 2014) (“It is the obligation of the non-moving party . . . not the court, to scour the

record in search of the evidence that would defeat a motion for summary

judgment.”).

Because Plaintiff has pointed to no record evidence of the economic impact on

the Property and has not identified any specific investment-backed expectation that

the City’s actions have stymied, the Court grants summary judgment to the City on

this count.6

6 The City’s initial motion argues that Plaintiff’s inverse condemnation count fails

because Plaintiff does not have a cognizable interest in the building permits and the

special exception. (Doc. 228 at 24–28). Whether or not true, these arguments miss

the point because Plaintiff is clearly complaining about an alleged loss of a

particular use of the Property, rather than its loss of permissions that would allow

it to keep the Property. (Doc. 111 at ¶¶ 109–20). In its reply, however, rather than

further opining on these arguments, Defendant argues that “Plaintiff has still

adduced no evidence to establish any fiscal impact on its property.” (Doc. 232 at 5).

V. Count V: Declaratory relief.

As a threshold matter, although the Fourth Amended Complaint indicates

that this count is brought under Florida state law, “[d]eclaratory judgment acts are

procedural in nature and, thus under the Erie doctrine, this Court must apply

federal procedural law.” Krauser v. BioHorizons, Inc., 903 F. Supp. 2d 1337, 1346

n.6 (S.D. Fla. 2012) (citations omitted); see also Manuel v. Convergys Corp., 430 F.3d

1132, 1138 n.3 (11th Cir. 2005) (“There is little doubt, and the parties do not argue

otherwise, that the district court had to apply the Declaratory Judgment Act, 28

U.S.C. § 2201 et seq., rather than the state declaratory judgment act, in this

action”); Goodbys Creek, LLC v. Arch Ins. Co., Case No. 3:07-cv-947-J-34HTS, 2009

WL 10671130, at *3 (M.D. Fla. Aug. 11, 2009) (“[T]he Court’s discretion with respect

to declaratory relief is specifically derived from the federal Declaratory Judgment

Act, which the Eleventh Circuit has held to be procedural in nature. . . .

Accordingly, the Court determines that although [the claim] seeks declaratory relief

pursuant to both the Florida and federal Declaratory Judgment Acts, the federal

Declaratory Judgment Act governs any procedural matters.”).

The federal Declaratory Judgment Act authorizes a federal court, “in a case of

actual controversy within its jurisdiction . . . [to] declare the rights and other legal

relations of any interest party seeking such declaration[.]” 28 U.S.C. § 2201. The

Declaratory Judgment Act requires that there must be an “actual controversy”

before a court considers granting declaratory relief. Med Immune Inc. v. Genentech,

Inc., 549 U.S. 118, 126 (2007). “Basically, the question in each case is whether the

facts alleged, under all circumstances, show that there is a substantial controversy,

between parties having adverse legal interests, of sufficient immediacy and reality

to warrant the issuance of a declaratory judgment.” Id. at 127. “Ordinarily, a

controversy is not sufficiently immediate or real where the parties’ dispute . . . has

been rendered moot . . . .” Mt. Hawley Ins. Co. v. Tactic Security Enforcement, Inc.,

252 F. Supp. 3d 1307, 1309 (M.D. Fla. 2017) (citing Texas v. United States, 523 U.S.

296, 300 (1998)).

Here, Plaintiff’s request for a declaratory judgment indicates five specific

declarations that Plaintiff wishes the Court to make. (Doc. 111 at ¶¶ 121–39). All

five of the requested declarations were denied on the merits for the reasons

explained in this order, where the Court granted the Defendants’ motions for

summary judgment as to each of them. That is, there is nothing left for the Court to

declare because the declarations sought are either moot or the underlying claim

underpinning the requested declarations has been adjudicated. Even more,

Plaintiff fails to point the Court to any legal support to justify such declarations.

In all events, for completeness, Plaintiff seeks an order declaring the use of

the Property as a mobile home park is a continued, legal non-conforming use. (Id.

at 32). This issue is moot because the state court has already determined that the

mobile home park is a legal non-conforming use. (Doc. 227-21 at 6; Doc. 227-22 at

2). See Mt. Hawley Ins. Co., 252 F. Supp. 3d at 1309 (citing Texas, 523 U.S. at 300).

Second, Plaintiff seeks an order declaring the Corrective Actions inconsistent

with the City’s zoning regulation powers and the City’s Code of Ordinances

unconstitutional. (Doc. 111 at 32). Plaintiff does not provide support for this

request. (Doc. 227 at 39–41); see also §§ I, III, IV.

Third, Plaintiff requests that the Court declare that the City’s denial of

Clewiston Commons’ Special Exception Application is inconsistent with the legal

non-conforming use allowed in the City and in the State of Florida. (Doc. 111 at 32).

Again, Plaintiff does not provide support for this request. (See § I).

Fourth, Plaintiff seeks an order declaring the Termination Notices “void ab

initio” as they fail to include times of any hearings before the Special Magistrate if

the violations were not corrected and did not provide a procedure or mechanism

through with Clewiston Commons could dispute or contest the violations before a

Special Magistrate and/or Circuit Court.” (Doc. 111 at 32); see Mt. Hawley Ins. Co.,

252 F. Supp. 3d at 1309 (citing Texas, 523 U.S. at 300). The issue of the

Termination Notices is moot because the Circuit Court essentially found that they

cannot be effectuated. (See Doc. 227-23 at 1–2 (“Plaintiff’s non-conforming use of

the Property “must be allowed to continue until the [P]roperty ceases to be used as a

trailer park.”)).

Finally, Plaintiff requests an award of all attorney’s fees, costs, and expenses

incurred by Plaintiff in the prosecution of this action. But Plaintiff has not provided

any basis on which the Court should grant it attorneys’ fees.

Thus, Plaintiff’s motion for summary judgment is denied as to this count.

And the Court dismisses Count V as a matter of law. First, the Court has granted

summary judgment to Defendants on the claims underpinning the declarations

sought by Plaintiff here. Alternatively, it is not this Court’s responsibility to mine

the record to find evidence that could support Plaintiff’s declaratory claim. See

Samuel, 2016 WL 11493322, at *9 (“[I]t is the party opposing summary judgment,

and not the Court, that bears the burden of perusing the record to find evidence

creating genuine issues of material fact”) (citation omitted); Lusco, 2014 WL

1152934, at *6 (“It is the obligation of the non-moving party . . . not the court, to

scour the record in search of the evidence that would defeat a motion for summary

judgment.”). But that’s what the Plaintiff has left the Court to do here.

VI. Count VI: Tortious interference.

Under Florida law, the elements of tortious interference with a business

relationship are: (1) the existence of a business relationship that affords the

plaintiff existing or prospective legal rights; (2) the defendant’s knowledge of the

business relationship; (3) the defendant’s intentional and unjustified interference

with the relationship; and (4) damage to the plaintiff. See Int’l Sales & Servs., Inc.

v. Austral Insulated Prods., Inc., 262 F.3d 1152, 1154 (11th Cir. 2001) (citing Ethan

Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 814 (Fla. 1994)). “Causation

requires a plaintiff to prove that the defendant manifested a specific intent to

interfere with the business relationship. No liability will attach unless it is

established that the defendant intended to procure a breach.” Mortgage Now, Inc.

v. Guaranteed Home Mortg. Co., Inc., 545 Fed. App’x 809, 811 (11th Cir. 2013)

(quoting Fiberglass Coatings, Inc. v. Interstate Chem., Inc., 16 So. 3d 836, 838 (Fla.

2d DCA 2009)).

Plaintiff moves for summary judgment, claiming that the City and the

individual defendants tortiously interfered with Plaintiff’s business relationships,

including with the tenants of the mobile home park, as well as with “various

contractors, consultants, and vendors that Clewiston Commons did business with

for the use and management of the [P]roperty.” (Doc. 227 at 44). Defendants admit

that the first element of tortious interference is not at issue but argue that Plaintiff

cannot prove the remaining elements. (Doc. 228 at 30–33; Doc. 229 at 18).

The Court denies both motions for summary judgment on this claim. As an

initial matter, Defendants’ argument that all of their actions were within their

police power is conclusory. Moreover, while a reasonable jury could find that

Defendants’ actions were within their police power, the Court finds that a

reasonable jury could also find that at least some of their actions were not.

Defendants admit that the first element of tortious interference is not at

issue. (Doc. 229 at 18). With respect to the remaining elements, there is sufficient

record evidence that Defendants7 knew about the existing business relationships

and wished to interfere with Plaintiff’s leases (see e.g., Doc. 227-8 at 1) such that a

reasonable jury could find that they interfered without justification, at least with

respect to the Termination Notices. A reasonable jury could infer this intent

because, as the state court found, Plaintiff’s use of the Property was a legal non-

7 The Court refers to “Defendants” because Count VI was brought against

Defendants City, Gardner, Perry, Reese, and McNeil. Defendants did not argue

that the claim should, in the alternative, be dismissed as to only certain of

Defendants; thus the claim remains against all of them.

conforming use that “must be allowed to continue until the [P]roperty ceases to be

used as a trailer park.” (See Doc. 228-23 at 8; Doc. 227-22).

The Court notes that whether to grant Defendant’s motion for summary

judgment on this count was a close call for two reasons, each of which present

serious issues with Plaintiff’s tortious interference claim.

First, despite the many allegations of general ill will in the fact section of

Plaintiff’s argument, Plaintiff failed to point to any record evidence to demonstrate

any specific business relationships that Defendants knew of and knowingly

interfered with. See Abusaid v. Hillsborough Cnty. Bd. of Cnty. Com’rs, 637 F.

Supp. 2d 1002, 1027 (M.D. Fla. 2007) (“Florida law does not recognize an action for

interfere with a business’s relationship to past customers or the community at

large.”). Second, although the record contains some general, broad stroke evidence

of damages (Doc. 227-3 at 83–84), the record is scant with evidence as to damages.

Plaintiff will have to show that the damages are specifically connected to any

interference that was unjustified as opposed to interference that was justified.

Ultimately, the Court finds that a reasonable jury could find that Defendants knew

about and unjustifiably interfered with Plaintiff’s business relationships,

particularly with respect to Plaintiff’s tenants and that Plaintiff suffered damages

as a result. (Doc. 228 at 30–32).

CONCLUSION

For the reasons set forth above, it is ORDERED:

1. Plaintiff’s Motion for Summary Judgment (Doc. 227) is DENIED.

2. Defendants’ Motion for Summary Judgment (Doc. 228) is GRANTED in

part and DENIED in part.

3. The only remaining count in this matter is Count VI, the tortious interference

with business relationships claim. Should the parties wish to file renewed

motions for summary judgment on this count, they may file a request for

leave to do so.

4. Independently, this Court appreciates the complexity of this case and the

frustration of the parties. The Court is mindful that the parties have each

incurred litigation costs and that an appeal of this Court’s order may further

increase those litigation costs. To attempt to defray additional costs, the

Court will offer the parties a settlement conference to be conducted by a

United States Magistrate Judge at no additional costs to them. The Court

asks that, should the parties request such, that they do so after meaningfully

conferring with each other that a settlement is reasonable given the parties’

positions. Should the parties wish to request a settlement conference

conducted by a United States Magistrate Judge, they shall file a joint notice

stating same no later than May 3, 2024. Otherwise, the Court will notice a

status hearing to discuss scheduling trial.

5. The Clerk of Court is DIRECTED to terminate Defendant Kathy Combass

because there are no claims remaining against her.

ORDERED at Fort Myers, Florida on April 238, 2024.

A . a - om,

PEA ChutleneL

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

37