Dibbs v. Hillsborough Cnty.

• Decision Date: 12 December 2014
• Docket Number: Case No. 8:12–cv–2851–T–36TGW.
• Citation: 67 F.Supp.3d 1340
• Parties: Stephen J. DIBBS, Plaintiff, v. HILLSBOROUGH COUNTY, FLORIDA, Defendant.
• Court: U.S. District Court — Middle District of Florida

67 F.Supp.3d 1340

Stephen J. DIBBS, Plaintiff

v.HILLSBOROUGH COUNTY, FLORIDA, Defendant.

Case No. 8:12–cv–2851–T–36TGW.

United States District Court, M.D. Florida, Tampa Division.

Signed Dec. 12, 2014.

Kristin Marie Tolbert Mora, Petitt Worrell Craine Wolfe LLC, Tampa, FL, for Plaintiff.

Stephen M. Todd, Tampa, FL, for Defendant.

ORDER

CHARLENE EDWARDS HONEYWELL, District Judge.

This cause comes before the Court on cross-motions for summary judgment filed by the parties in this matter. Plaintiff Stephen J. Dibbs (“Dibbs” or “Plaintiff”) filed a Motion for Partial Summary Judgment on Counts I and II (“Dibbs' Motion”) (Doc. 35) and Defendant Hillsborough County, Florida (“the County” or “Defendant”) filed a Motion for Summary Judgment (“the County's Motion”) (Doc. 29). Each party filed timely responses (Docs. 51 & 53) and the Court heard oral arguments on August 11, 2014. Upon due consideration of the parties' submissions, including deposition transcripts, affidavits, memoranda of counsel and accompanying exhibits, and for the reasons that follow, Plaintiff's Motion for Partial Summary Judgment as to Counts I and II (Doc. 35) will be denied and Defendant's Motion for Summary Judgment (Doc. 29) will be granted in part and denied in part.

I. STATEMENT OF UNDISPUTED MATERIAL FACTS¹

A. The Keystone Community Plan

In 2001, Hillsborough County, Florida adopted a Community Plan (“the Plan”) for the Keystone–Odessa area (“Keystone”), which is in northwestern Hillsborough County. Doc. 29 at p. 2; Doc. 37 at 62:24–25.² Plaintiff alleges that the Plan was supported by “NIMBYs.” Id. at 26:1623. “NIMBY” stands for Not in My Back Yard, and refers to a group of individuals that Dibbs classifies as “radical non-development activists.” Id. at 26:16–23. Dibbs testified that the NIMBYs classify Keystone as a rural community, but Dibbs describes the area as suburban. Id. at 38:12–25.

Dibbs believes that the NIMBYs created the Plan, in part, to keep minorities or low-income people from living in Keystone. Id. at 40:8–15, 45:9–46:6. Dibbs testified that four or five Keystone residents made comments to him about wanting to keep minorities out of the area. Id. at 40:2343:4. While he knows minorities that live in Keystone, Dibbs believes that “Keystone is unaffordable for black people.” Id. at 43:5–24. Dibbs also testified that minorities are “probably okay” in Keystone as long as they are rich. Id. at 43:21–44:10. Dibbs has made the County Commissioners aware of his concerns about discrimination in Keystone. Id. at 44:11–22.

Dibbs also believes that the Plan's rules are unfair and nitpicky. Id. at 48:2–24. For example, the Plan prohibits the building of concrete walls, even though concrete walls already exist in Keystone. Id. at 48:6–49:11. Dibbs also objects to the requirement of slanted parking spaces. Id. at 50:2–20. According to Dibbs, slanted parking restricts growth because you can fit fewer cars in a parking lot. Id. at 51:17–22. The Plan also prevents the widening of roads in Keystone, which Dibbs believes is also a method to limit growth and development. Id. at 52:7–21.

Dibbs attacks the Plan's provisions that restrict access to public water and sewer, and prohibit development of property that's less than five upland acres. Id. at 58:4–60:20. According to Dibbs “[a]lmost every provision in the Plan is ridiculous, without common sense, and made to restrict or deny property owners.” Id. at 57:1–3.

B. Dibbs' Land Use Issues

Following adoption of the Plan, Dibbs purchased three separate pieces of real property in Keystone: one parcel (21.6 acres) at Lakeshore and Wilcox (“the Lake LeClare property”); one parcel at Gunn Highway and North Mobley Rd. (“the Gunn Highway property”); and another parcel (300 acres) at Lutz Lake Fern Rd. and the Suncoast Expressway (“the Lutz Lake Fern property”). Id. at 33:19–35:16, 62:13–19. Dibbs was represented by counsel when he purchased these properties. Id. at 37:4–8. Dibbs testified that he was generally aware of the Community Plan at the time he purchased property in Keystone, but did not know how “restrictive” it was. Id. at 36:11–20. However, Dibbs also alleges that he attended some of the meetings regarding adoption of the Plan and requested that the Lake LeClare property he was planning to purchase not be included in the plan. Doc. 17 ¶ 24. Dibbs' request for exclusion from the Plan was denied. Doc. 53–2 at p. 7. Additionally, Dibbs' representatives attended some of the meetings regarding adoption of the Plan. Id. at p. 4.

In March of 2006, Dibbs began the application process for turning the Lutz Lake Fern property into a “borrow pit” or “land excavation.” Id. at p. 4, 10–11. To obtain approval for the project, Dibbs had to apply for permits through, at a minimum, Hillsborough County and the Southwest Florida Water Management District (“SFWMD”). Doc. 37 at 85:25–86:24. Dibbs' application to the County was completed in July of 2006. Doc. 53–2 at p. 4. Dibbs testified that approval of his application with the County was delayed because there were 100 year-old easements that it took seven months for the County to eliminate. Doc. 37 at 87:3–6. Dibbs believes that this process should have only taken 30 minutes, not seven months. Id. at 87:7–16. Dibbs further believes that this delay was the result of the influence of the NIMBYs on the County's staff, the staff not liking him, and the department being understaffed. Id. at 89:7–24, 90:7–17, 93:4–9. There was then a second delay due to an issue with mineral rights for sand. Id. at 94:15–22. Dibbs testified that the County's motivation for the second delay was to prevent him from getting a contract to provide services to the new Steinbrenner school. Id. at 94:15–18. Ultimately the mineral rights issue was resolved in Dibbs' favor. Id. at 96:17–24. Dibbs received approval from the County for the borrow pit in February of 2008. Doc. 53–2 at p. 4. Dibbs does not recall whether the SFWMD permit was obtained before or after February of 2008. Doc. 37 at 98:5–14. Dibbs was represented by counsel through this process as well. Id. at 88:6–12.

In 2008 and 2009 Dibbs made applications to opt out of the Keystone Community Plan and join the Lutz Community Plan. Id. at 113:10–14. Under the Lutz plan, Dibbs would have had more freedom to densely develop his property. Id. at 113:10–14. Dibbs' requests were denied. Id. at 114:5–17. Dibbs did not seek judicial review of these denials. Id. at 115:13–23.

Dibbs also sought to be included in an urban service area and requested a clearing permit for a wildlife habitat. Id. at 115:24–116:20. These requests were denied and Dibbs did not seek judicial review. Id. at 115:24–118:17.

In May of 2009, Plaintiff applied for a permit to bring 9,800 cubic yards of “organic mulch” onto his Lutz Lake Fern property. Doc. 53–2 at p. 6, 104. Dibbs received this permit on March 12, 2010. Id. at p. 6, 105–108. On September 3, 2010 Dibbs received a violation notice from the County indicating that staff witnessed two large trucks dumping mulch mixed with dirt on Dibbs' property, and that this activity violated Land Development Code 8.018.05D and condition 17 of Dibbs' operating permit. Id. at p. 109–110. Dibbs contacted James Miller, an engineering specialist with the County, stating that he “did not violate anything” and referring Mr. Miller to the permit Dibbs was issued on March 12, 2010. Id. at p. 111. Dibbs requested a letter from the County stating that no violation occurred. Id. It is not clear from the record whether such a letter was ever issued.

In 2010 Dibbs requested that the Lake LeClare property be rezoned so that he could open a golf course and driving range. Id. at p. 7. This application was denied. Doc. 37 at 77:12–78:13.³ Dibbs is now building single-family homes on the Lake LeClare property. Id. at 79:19–23.

In 2011, five air conditioning units were stolen from Dibbs Plaza—leaving tenants without air conditioning on Memorial Day weekend. Id. at 126:14–127:11; Doc. 17 ¶ 74. Dibbs found a contractor to install new units the very same day. Doc. 37 at 127:12–20. However, a month later, Dibbs received a fine for replacing the air conditioning units without a permit. Id. at 127:22–24. Dibbs called County Commissioner Hagan's office to challenge the fine and was told by Rich Reidy that he would “take care of it.” Id. at 128:6–10. Dibbs has not paid the fine.Id. at 128:4–5.

Dibbs alleges that various County employees delayed or denied his applications because they did not like him. Doc. 37 at 29:1–30:24; 31:10–33:8. Dibbs believes that County Administrator Pat Bean did not like him because she is a “NIMBY lover.” Doc. 37 at 24:18–25:5.

Dibbs filed this lawsuit in December of 2012 and filed his Amended Complaint (Doc. 17) on November 11, 2013. He asserts the following five claims for relief: Count I (42 U.S.C. § 1983 and Florida Constitutional claims for violation of due process as to the community plans); Count II (42 U.S.C. § 1983 and Florida Constitutional claims for violation of equal protection); Count III (42 U.S.C. § 1983 and Florida Constitutional as-applied claims for violation of due process); Count IV (42 U.S.C. § 1983 and Florida Constitutional as-applied claims for violation of equal protection); Count V (action for inverse condemnation under the laws of Florida).

II. STANDARD OF REVIEW

Summary judgment is appropriate only when the court is satisfied that “there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law” after reviewing the “pleadings, the discovery and disclosure materials on file, and any affidavits [.]” Fed.R.Civ.P. 56(c)(2). In determining whether a genuine issue of material fact exists, the court must consider all the evidence in the light most favorable to the nonmoving party. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir.2003).

Issues of fact are “genuine only if a reasonable jury, considering the evidence presented, could find for the nonmoving party....