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UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA

FT. MYERS DIVISION

CASE NO.: 2:18-cv-00339-SPC-MRM

CLEWISTON COMMONS LLC, a Florida


Limited Liability Company,

Plaintiff,
vs.

CITY OF CLEWISTON, a Florida Municipal


corporation, MALI GARDNER, individually
in her official capacity as City commissioner
and Mayor of the City of Clewiston, AL
PERRY, individually in his official capacity
as City Manager and City Clerk of the City of
Clewiston, TRAVIS REESE, individually in
his official capacity as Community
Development Director of the City of
Clewiston, DEBBIE MCNEIL, individually
in her official capacity as Code Enforcement
Officer, and KATHY COMBASS,
individually in her official capacity as City
Clerk,

Defendants.
____________________________________/

AMENDED COMPLAINT

Plaintiff, CLEWISTON COMMONS LLC, a Florida Limited Liability Company

(“CLEWISTON COMMONS” or “Plaintiff”), files this Complaint against the Defendant, CITY

OF CLEWISTON a Florida municipal corporation (“CITY”), MALI GARDNER, individually

and in her official capacity as commissioner and Mayor of the City of Clewiston

(“GARDNER”), AL PERRY, individually and in his official capacity as City Manager and City

Clerk of the City of Clewiston (“PERRY”) TRAVIS REESE, individually and in his official

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capacity as Community Development Director of the City of Clewiston (“REESE”), DEBBIE

MCNEIL, individual and in her official capacity as Code Enforcement Officer (“MCNEIL”), and

KATHY COMBASS, individually and in her official capacity as City Clerk (“COMBASS”)

(collectively, the “DEFENDANTS”), seeking equitable, declaratory and injunctive relief,

monetary damages and other relief, and as grounds therefor, alleges as follows:

INTRODUCTION

1. CLEWISTON COMMONS has used real property located in the CITY as a

mobile home park, serving residents who would not otherwise be able to live elsewhere in the

CITY while working in and serving the other residents of the CITY.

2. CLEWISTON COMMONS has operated the mobile home park on its Property

for more than a decade in an open and obvious manner, and until recently, such operation was

with the blessing and full consent of the CITY, GARDENER (as a City Commissioner and then

the Mayor), PERRY (as the City Manager), REESE (as the Community Development Director)

and MCNEIL (as the Code Enforcement Officer).

3. The CITY is now clinging to a zoning change that occurred more than ten (10)

years ago to stop CLEWISTON COMMONS from using the Property as a mobile home park.

4. The DEFENDANTS believe the mobile home park is a “blight” on the CITY and

they want to see this “blight” erased from the CITY’s landscape.

5. However, this is despite the history of the Property and the families it serves, and

the fact that, month after month, and year after year for more than ten (10) years since the zoning

change, the CITY ratified use of the Property as a mobile home park.

6. In fact, between 2016 and 2017, CLEWISTON COMMONS spent tens of

thousands of dollars on repairs to comply with alleged code violations from the CITY, which

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citations were issued at the direction or consent of GARDNER, PERRY, REESE and MCNEIL.

7. Thereafter, despite requiring such repairs, and agreeing the repairs were

completed in compliance with the City’s requirements, the DEFENDANTS undertook action to

force CLEWISTON COMMONS to vacate the Property and remove all mobile home residents

without prior notice or opportunity to be heard.

JURISDICTIONAL ALLEGATIONS

8. This Court has jurisdiction pursuant to 28 U.S.C. §1331, because more than one

cause of action alleged in this Complaint raises a federal question relating to or arising out of

DEFENDANTS’ actions concerning real property situated within the municipal limits of the

CITY.

9. Venue is proper in this Court because the real property at issue is located within

the City of Clewiston, Hendry County, Florida, and the actions challenged are those of the CITY.

10. The Plaintiff, CLEWISTON COMMONS, LLC, is a Florida limited liability

company, doing business in Hendry County, Florida.

11. The Defendant, CITY OF CLEWISTON, is a Florida municipal corporation,

whose corporate offices are located at 115 W Ventura Ave, Clewiston, FL 33440.

12. The Defendant, MALI GARDNER, is an individual over the age of 18, and is

otherwise sui juris.

13. The Defendant, AL PERRY, is an individual over the age of 18, and is otherwise

sui juris.

14. The Defendant, TRAVIS REESE, is an individual over the age of 18, and is

otherwise sui juris.

15. The Defendant, DEBBIE MCNEIL, is an individual over the age of 18, and is

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otherwise sui juris.

16. The Defendant, KATHY COMBASS, is an individual over the age of 18, and is

otherwise sui juris.

17. The Plaintiff has been required to retain the services of the undersigned counsel to

represent it in this action and has obligated itself to pay a reasonable fee for those services.

18. All conditions precedent or actions necessary to the filling of this action have

occurred, been taken, waived or excused, such that this case is properly before the Court and ripe

for judicial review.

CONTINUED USE AS MOBILE HOME PARK FOR MORE THAN 10 YEARS

19. Plaintiff holds record legal title to parcels of real property in Hendry County,

Florida, and situated within the municipal limits of the Defendant CITY, with such parcesl being

commonly addressed as 831 E Sagamore Ave, Clewiston, Florida 33440, having property tax

I.D. numbers 3014334-01003850010 and 3014334-01003850020, and being legally described as:

Lots 17 through 29, inclusive, in Block 384 and Lots 1 through 4,


inclusive, East 1/2 of Lot 5 and Lots 44 through 47, inclusive, in
Block 385, all of the General Plan of Clewiston, Florida, as revised
September 7, 1937, according to the plat thereof recorded in Plat
Book 2, Pages 71 through 78, inclusive, of the Public Records of
Hendry County, Florida.

The above-described property is herein referred to as the “Property.” A true and correct copy of

the warranty deed evidencing the foregoing, as recorded at Book 736, Pages 679 through 680, of

the current, official record of Hendry County, Florida, is attached and incorporated as Exhibit

“A.”

20. Upon purchase of the Property by Plaintiff, the Property was in a RM-1

(residential, permitting mobile homes and RVs) zoning area.

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21. Upon information and belief, the Property was used as a mobile home park for

more than thirty (30) years prior to Plaintiff’s purchase of it.

22. In late 2006 or early 2007, Plaintiff communicated with the then-city-manager of

the CITY for a special exception to the residential zoning of the Property such that Plaintiff

would be permitted to use the Property for commercial purposes.

23. The understanding between the Plaintiff and the CITY was that if a change of use

of the Property was feasible to Plaintiff, it would occur, and if it was discovered not to be

feasible, use as a mobile home park would continue under the existing residential zoning.

24. In fact, in a meeting before the CITY Commission on January 22, 2007, Plaintiff

informed the CITY it would not undertake any steps to terminate its current use until a feasibility

study is completed for the Property and appropriate approvals for plans have been received from

the CITY.

25. While Plaintiff intended to determine the feasibility of a change of use before

moving forward with any change, the CITY made it clear to Plaintiff that use of the Property as a

mobile home park could continue as a legal non-conforming use.

26. Through the then-city-manager, the CITY instead asked Plaintiff to submit a

request for a permanent zoning change from residential to commercial. Plaintiff was encouraged

to request the zoning change so that the use of the Property as commercial would be consistent

with the CITY’s future land use plan, which had not yet been finalized.

27. At this time and until present, there has been a mortgage on the Property which

required an active rent roll and the continued use of the Property as income-generating. Any

change to the use of the Property would require, in addition to a number of other tasks, approval

of the Plaintiff’s lender.

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28. In April of 2007, the CITY approved change of zoning designation for the

Property from Mobile Home/RV Park (RM-1) to Commercial (C), which was made a part of the

CITY’s planned Comprehensive Plan.

29. Unfortunately, by the end of 2007 or beginning of 2008, the real estate market all

throughout the United States, including the state of Florida, suffered a major crash.

30. As a result, anticipated development in and around the CITY stopped.

Furthermore, after completing feasibility studies for the Property’s commercial use, Plaintiff

decided against such use.

31. CLEWISTON COMMONS continued use of the Property as a mobile home park

after the change of zoning designation. At that time, Plaintiff made significant improvements to

the Property such as clearing and removing abandoned units, repairing driveways and electrical

systems throughout the Property, and installing quick-connects to utilities. The cost for the

improvements to the Property were significant.

32. Every year from 2007 to 2016, the CITY granted to CLEWISTON COMMONS

permits to operate the Property as a mobile home park.

33. CLEWISTON COMMONS’ continued use of the Property as a mobile home park

was understood by Plaintiff and Defendants to be a legal (grandfathered) non-conforming use.

34. Since 2007, CLEWISTON COMMONS received Notices of Violations from the

CITY for various code violations on the Property; and was given different corrective actions for

those violations, such as: junk prohibited, recreational vehicle must display a valid tag, tires must

be road ready, any permanent utility fixtures or structures must be removed, etc. (“Corrective

Actions”).

35. CLEWISTON COMMONS complied with each of the Corrective Actions issued

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by the CITY to stay in compliance and continue use of the Property as a mobile home park.

Again, the cost of the repairs made by Plaintiff in order to comply with the Corrective Actions

was significant.

36. Additionally, compliance of Corrective Actions on the Property was discussed

during various code enforcement hearings.

37. After CLEWISTON COMMONS complied with the Corrective Actions, the

CITY would mark the Property in “compliance” and would issue a permit, explicitly permitting

the continued use of the Property as a mobile home park. As an example, a true and correct copy

of the Code Enforcement Hearing Agenda dated Wednesday, January 27, 2016, is attached and

incorporated as Exhibit “B”.

38. Until 2016, the Property remained fully rented and every unit was in compliance

with the CITY’s codes.

CITY’S FIRST ACTION TO HINDER OPERATON THE MOBILE HOME PARK

39. At the beginning of 2016, nearly ten (10) years after the zoning change and

CLEWISTON COMMON’S continued use of the Property as a mobile home park and the

CITY’S continued ratification of use of the Property as such, the CITY began to deny permits for

various parts of the Property.

40. Upon information and belief, the CITY, GARDNER, PERRY, REESE, MCNEIL

and others conspired to circumvent the fact that use of the Property as a mobile home park by

prohibiting CLEWISTON COMMONS from replacing units damaged or deemed uninhabitable.

41. Prior to this time, the CITY never indicated such use, on the Property as a whole,

was not or would not be permitted.

42. CLEWISTON COMMONS continued the use of the Property as a mobile home

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park, and never abandoned its use as such.

43. At the direction by the CITY and REESE, on or about April 8, 2016,

CLEWISTON COMMONS submitted an Application for Appeals or Special Exception

(“Appeal”) to appeal the CITY’S decision to disallow replacement of RV/mobile units within the

mobile home park at the Property. A true and correct copy of the application is attached and

incorporated as Exhibit “C”.

44. On May 2, 2016, REESE admitted on the record during a Clewiston Planning and

Zoning Board meeting that Plaintiff has “remained as a legal non-conforming use” since 2007. A

true and correct copy of the minutes from the May 2, 2016 meeting is attached hereto as Exhibit

“D”.

45. Similarly, on or about May 16, 2016, REESE authored a Staff Summary Report

for consideration by the City Commission. In that Report, REESE wrote: “The use of a mobile

home park is a legal non-conforming use.” (emphasis added). A true and correct copy of the

Staff report is attached hereto as Exhibit “E”.

46. On July 11, 2016, Plaintiff requested the CITY to postpone any Public Hearing on

the Special Exception request as the Plaintiff was reviewing its future plans and trying to

determine if a Special Exception would be the next best step. On the same date, the CITY and

COMBASS agreed to postpone the Public Hearing until the September City Commission

meeting. A true and correct copy of the email confirmation of a September, 2016, hearing is

attached hereto as Exhibit F.

47. However, despite Plaintiff’s request and the CITY and COMBASS’ confirmation

of postponement of the Public Hearing to September 2016, unbeknownst to the Plaintiff, the

CITY, GARDNER, PERRY, REESE and MCNEIL decided to schedule the hearing for August

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15, 2016, without further notice to Plaintiff concerning the rescheduled hearing.

48. On or about July 26, 2016, before the August 15th hearing, then-city-attorney,

Charles Schoech, Esq. (“Mr. Schoech”) prepared a legal opinion memorandum regarding the

issue of non-conforming legal uses and communicated his opinion to the CITY, PERRY and

REESE, who then communicated the matter to the City Commission, including but not limited to

GARDNER. A true and correct copy of the legal opinion memorandum prepared by Mr. Schoech

is attached hereto as Exhibit “G”.

49. In Mr. Schoech’s Memorandum, the CITY’s counsel advised: “City cannot

prohibit a mobile home park owner from replacing mobile homes on lots within the mobile home

park where the mobile home park owner has not discontinued or abandoned the use of the mobile

home park.”

50. On July 26, 2016, the Memorandum was sent by email to REESE. On August 1,

2016, the Memorandum was sent by email to PERRY. REESE and PERRY both sent the

Memorandum or communicated its contents to GARDNER. The Memorandum was later (on

February 6, 2017) sent to current City Attorney, Gary Brandenberg, Esq., and on March 3, 2017,

it was sent to COMBASS.

51. The CITY, PERRY, REESE, GARDNER and MCNEIL ignored the legal advice

of Mr. Schoech. Instead, shortly after receiving his legal opinion, REESE, at the direction of

GARDNER and PERRY, requested the immediate resignation of Mr. Schoech.

52. PERRY, REESE, GARDNER, and MCNEIL were present at the August 15th

hearing. Instead of adhering to the advice of long-time legal counsel, Mr. Schoech, they

intentionally misled the City Commission by hiding the Memorandum of Mr. Schoech and its

contents from the rest of the City Commission, and therefore did not advise the Commission

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about the ramifications for the City as a result of ignoring his advice.

53. PERRY, REESE, GARDNER and MCNEIL abdicated their responsibilities and

duties to the City Commission by hiding Mr. Schoech’s Memorandum and failing to bring to

light the relevant issues contained therein for the Commission’s consideration.

54. During the August 15, 2016, City Commission hearing, REESE again said the

Property’s use as a mobile home park was a legal non-conforming use, despite the fact that, as he

admitted on the record, the lot size requirements in place in 2016 were the same as in place in

2007. REESE specifically said “it was legal for the mobile homes to remain…” A true and

correct copy of the City Commission Minutes are attached hereto as Exhibit “H”.

55. However, because Mr. Schoech’s Memorandum was intentionally hidden from

the City Commission by GARDNER, PERRY, REESE and MCNEIL, the City Commission

denied the Plaintiff’s request for special exception.

56. Furthermore, COMBASS abdicated her responsibilities and duties to the City

Commission when she confirmed the hearing with Plaintiff for September 19, 2016, and

allowing the City Commission to move forward with the hearing on August 15, 2016.

57. On or about November 30, 2016, CLEWISTON COMMONS sent a public

records request to the CITY for public records relating to legal documents, research and memo(s)

of law and legal opinion concerning the non-conforming use of mobile home parks in the CITY.

A true and correct copy of the request is attached and incorporated as Exhibit “I”.

58. The CITY responded to the public records request in writing and stated it had no

such records in its possession. A true and correct copy of the CITY’s response to CLEWISTON

COMMONS’ public record request is attached and incorporated as Exhibit “J”.

59. CLEWISTON COMMONS continued to request from the CITY any documents it

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may have in its possession, custody or control relating to its position on mobile home parks.

60. On January 23, 2017, CLEWISTON COMMONS finally received documents

from the CITY in response to its public records request, which included a copy of Royal Palm

Trailer Park letter to the CITY with concerns about the CITY’s stance concerning mobile home

parks; an internal memorandum from REESE to Wendell Johnson, then-City Manager, dated

April 7, 2008; an internal memorandum from REESE to PERRY, City Manager dated August

16, 2016; a letter from Gary M. Brandenburg, Esq. to PERRY, City Manager dated August 31,

2016; and the request that CLEWISTON COMMONS made to the CITY requesting a Special

Exception dated August 16, 2016. A true and correct copy of these documents are attached and

incorporated as Exhibit “K”.

61. The CITY, PERRY and COMBASS, in violation of Florida’s Sunshine and public

record laws1, did not produce the legal opinion memorandum prepared by Mr. Schoech.

62. The CITY, instead, produced a memorandum from the Building Official to

PERRY, the City Manager. In that memorandum, the Building Official explained his (lay)

opinion concerning non-conforming mobile home parks stating:

RV/MH’s may only be replaced on lots that are conforming to


Chapters 50 and 110 of the City of Clewiston . . . In an effort to
reduce blight and sub-standard housing within our city, when a
MH/RV is removed or is so dilapidated as to be uninhabitable, we
no longer issue permits for replacement.

(emphasis added). A true and correct copy of the Memorandum dated August 15, 2016, is

attached and incorporated as Exhibit “L.”

63. CLEWISTON COMMONS continued its use of the Property as a mobile home

1
Florida Statute § 286.011, et. seq.

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park while still attempting to request permits for the vacant lots on the Property.

64. Incredibly, the CITY even denied permits for replacement of mobile homes

damaged as a result of Hurricane Irma in 2017.

65. Nevertheless, CLEWISTON COMMONS continued its use of the Property as a

mobile home park while attempting to repair or replace units damaged or deemed uninhabitable.

CITY’S NOTICE PROHIBITING USE OF PROPERTY AS A MOBILE HOME PARK

66. When the CITY’s plan to force CLEWISTON COMMONS to cease use of the

Property as a mobile home park did not work, the CITY, GARDNER, PERRY, REESE, and

MCNEIL decided to further their illegal actions.

67. On or about October 12, 2017, at the direction of GARDNER, PERRY and

REESE, without prior notice or opportunity to be heard, the CITY, through MCNEIL, issued two

(2) Notices of Violation to CLEWISTON COMMONS (Complaint # 17-0260 and 17-0261) (the

“Termination Notices”). A true and correct copy of the Termination Notices are attached and

incorporated as Exhibit “M”.

68. The Termination Notices required CLEWISTON COMMONS to take the

following action: “[R]emove all recreational vehicles and mobile homes being primarily or

principally used as a single-family housing to bring the property into compliance with [City

Code] 110-0395.”

69. The CITY demanded CLEWISTON COMMONS to comply with the Termination

Notices within 180 days from the receipt thereof.

70. Despite the continued use of the Property by CLEWISTON COMMONS as a

mobile home park without interruption or cessation for more than a decade and the CITY’s

continued ratification of the use every year (sometimes multiple times per year, based on permit

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issuances), and despite repeatedly acknowledging the legal non-conforming use status of the

Property, the CITY arbitrarily chose to prohibit the operation of a mobile home park on the

Property.

71. The CITY’s arbitrary and whimsical change in the use of the Property

notwithstanding, it cannot impose a change of use on the Property after more than a decade of

ratifying that same use because it now considers the mobile home park a “blight”.

72. The CITY’s actions would require CLEWISTON COMMONS to cease use of its

Property in the manner in which it has been operated openly and without challenge from the

CITY or anyone else for more than a decade.

73. The CITY, GARDNER, PERRY, and REESE are now attempting, under the

pretext of due process, to schedule hearings and move forward with the enforcement of the

Termination Notices through monetary fines and other means, despite the pendency of this

action.

74. Indeed, over Plaintiff’s continued objection and advisement that it would not be

able to present complete witness testimony and evidence, City Attorney Gary Brandenburg

scheduled a Code Enforcement Hearing on the Termination Notices for October 24, 2018.

75. The subject Code Enforcement Hearing was held before Magistrate James Watt2

and a decision is currently pending despite Plaintiff’s pending request for preliminary and

permanent injunction.

2
As evidenced by certain City Commission meeting notes, James Watt, Esq., acted as substitute City
Attorney for the CITY on multiple occasions in 2006 and 2007. Plaintiff believes that Mr. Watt should have recused
himself as sitting Magistrate at the October 24, 2018 Hearing due to a clear conflict of interest. Further, at the
hearing, the undersigned requested that Mr. Watt continue the Hearing to a later date due to the pending request for
preliminary and permanent injunction. Mr. Watt refused.

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COUNT I
CLAIM FOR DAMAGES PURSUANT TO 42 U.S.C. § 1983 et. seq.
(As to DEFENDANTS CITY, GARDNER, PERRY, REESE, and MCNEIL’s Violations of
Plaintiff’s Constitutional Guarantee of Equal Protection as Secured by the Fifth and Fourteenth
Amendments to the United States Constitution)

76. CLEWISTON COMMONS readopts and re-alleges paragraphs 1 through 75 as if

fully set forth and incorporated herein.

77. 42 U.S.C. § 1983 et. seq. exists to remedy instances where an act or omission

done under color of law deprives a person of a right, privilege or immunity secured by the United

States Constitution or Laws of the United States.

78. In denying CLEWISTON COMMONS’ permits, Special Exception and upon

issuance of the Termination Notices requesting removal of all recreational vehicles and mobile

homes within 180 days without prior notice or opportunity to be heard, the CITY, GARDNER,

PERRY, REESE, and MCNEIL (“Equal Protection Defendants”) acted under color of law – as

that term is defined under 42 U.S.C. § 1983. Specifically, the Equal Protection Defendants acted

under color of the CITY ordinances and rules.

79. Because the CITY held a public hearing to make a decision on the Special

Exception at the request of REESE and the City Commission (which included GARDNER at the

time) further voted to deny CLEWISTON COMMONS’ Special Exception, the CITY, REESE,

PERRY, and GARDNER’s conduct in hiding the legal Memorandum authored by Mr. Schoech

from the Commission and therefore causing the Commission to deny CLEWISTON

COMMONS’ Special Exception constitutes an official policy decision that was the moving force

of the Constitutional deprivation. Therefore, the “official policy or custom” requirement of a

Section 1983 action is unquestionably satisfied.

80. Because the CITY and MCNEIL, at the direction of or consent of GARDNER,

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PERRY and REESE, issued the Termination Notices to require removal of all mobile homes

from the Property within 180 days. the DEFENDANT’s conduct in issuing those Termination

Notices constitutes an official policy decision that was the moving force of the Constitutional

deprivation. Therefore, the “official policy or custom” requirement of a Section 1983 action is

unquestionably satisfied.

81. At all times relevant, CLEWISTON COMMONS maintained a property right

created under the laws of Florida and recognized and protected by the United States Constitution.

82. The Equal Protection Clause of the United States Constitution requires that

government entities treat similarly situated persons or entities alike.

83. With respect to other applicants similarly situated, the CITY has supported and/or

approved applications for permits for continuing use of legal (grandfathered) non-conforming

use of property and Special Exceptions to continue such use when said applications were

supported by similar evidence – or by far less evidence – than was CLEWISTON COMMONS’

applications.

84. In failing to adhere to the advice of the City Attorney, in keeping the City

Attorney’s Memorandum from the City Commission before the Commission made a decision, in

denying CLEWISTON COMMONS’ permit applications and Special Exception application, and

in issuing the Termination Notices, particularly in issuing the Termination Notices without prior

notice or opportunity to be heard, DEFENDANTS treated CLEWISTON COMMONS

differently from similarly situated applicants whose applications for permits for continuing use

of legal non-conforming use of its property and Special Exceptions for the same were supported

and approved. The unequal application of the CITY ordinances, rules and regulations on an ad

hoc basis constituted an intentional and discriminatory exercise of power applied in an irrational

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and whole arbitrary manner, without any reasonable or rational basis for such disparate

treatment.

85. The Equal Protection Defendants, in discriminating against CLEWISTON

COMMONS through the denial of permits and Special Exception applications, and in issuing the

Termination Notices, did so without any conceivable basis to support its actions, or any rational

relationship between its denial and any legitimate government interests. Defendant thus violated

CLEWISTON COMMONS’ Constitutional guarantee of Equal Protection under the law as

provided by the Fifth and Fourteenth Amendments to the United States Constitution.

86. In terms of similarly situated applicants whose applications were treated

differently than CLEWISTON COMMONS, those development include – but are not limited to –

the following:

a. Special Exception for Clewiston Marina, Inc.: The City of Clewiston

approved a Special Exception application submitted by the Clewiston Marina,

Inc. giving it permission to operate the property as an RV Park within an R-3

Residential District for seven (7) years, with the Special Exception expiring

on October 1, 2020.

b. The CITY has never hidden the written legal opinion of a City Attorney so

that the City Commission would vote to deny the relief requested, in direct

contravention of the City Attorney’s Memorandum.

87. The Equal Protection Defendants, based on the foregoing allegations, have

violated CLEWISTON COMMONS’ Constitutional Guarantee of Equal Protection as secured by

the Fifth and Fourteenth Amendments to the United States Constitution.

88. The Equal Protection Defendants’ deprivation of CLEWISTON COMMONS’

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rights and privileges secured by the Fifth and Fourteenth Amendments to the United States

Constitution as stated above, has caused CLEWISTON COMMONS significant general and/or

special/consequential damages recoverable under 42 U.S.C. § 1983.

89. Specifically, CLEWISTON COMMONS has incurred damages relating to non-

use of parts of the Property that currently have no permit to continue operation and

corresponding due diligence to request those permits from the CITY; professional fees (including

attorneys’ fees) and damages in the form of lost profits that would have been earned and enjoyed

by CLEWISTON COMMONS for its continued use of the legal (grandfathered) non-conforming

use of its property.

90. Additionally, CLEWISTON COMMONS has been required to retain the services

of the undersigned counsel for the purpose of prosecuting this action. Pursuant to 42 U.S.C. §§

1983 and 1988 et. seq., the Equal Protection Defendants are liable for these attorneys’ fees.

WHEREFORE, CLEWISTON COMMONS respectfully requests that this Court grant

the following relief in this Count:

a. A judgment for damages in favor of CLEWISTON COMMONS and against

the Equal Protection Defendants for all money damages (both general and

special/consequential) suffered as the result of the Equal Protection

Defendants’ conduct in violation of CLEWISTON COMMONS

Constitutional guarantee of Equal Protection pursuant to 42 U.S.C. § 1983;

b. An award of all attorney’s fees, costs and expenses incurred by CLEWISTON

COMMONS in the prosecution of this action pursuant to 42 U.S.C. §§ 1983

and 1988;

c. Interest on the damages and attorney’s fees at the highest interest rate allowed

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by law; and

d. Such further and additional relief as this Court deems just and proper.

COUNT II
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF
(As to DEFENDANTS CITY, GARDNER, PERRY, REESE, and MCNEIL)

91. CLEWISTON COMMONS readopts and re-alleges paragraphs 1 through 75 as if

fully set forth and incorporated herein.

92. This is a Count for preliminary and permanent injunctive relief to enjoin the

CITY, GARDNER, PERRY, REESE, and MCNEIL (“Injunction Defendants”) from interfering

with CLEWISTON COMMONS’ legal non-conforming use of the Property by enforcing its

proposed Corrective Actions.

93. Unless restrained, the Injunction Defendants will enforce its Corrective Actions

and will compel the immediate removal of mobile homes in the property.

94. Allowing the Injunction Defendants to enforce the Termination Notices and

continued denial of the Special Exceptions would:

a. cause immediate and irreparable injury, loss, and damages to CLEWISTON

COMMONS;

b. directly and substantially decrease and limit the property rights of

CLEWISTON COMMONS;

c. impose great economic hardship on CLEWISTON COMMONS and the

residents of mobile homes at the Property;

d. amount to a taking and CLEWISTON COMMONS will be prejudiced by the

CITY’s improper actions; and

e. be violative of CLEWISTON COMMONS’ due process rights and right to

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equal protection of the law.

95. Permitting further CITY resources to be spent on denials of Special Exceptions,

enforcement of Termination Notices and denials of property permits for CLEWISTON

COMMONS will result in taxpayer money being wasted in the likely event that CLEWISTON

COMMONS prevails in this action.

96. CLEWISTON COMMONS does not have an adequate remedy at law to prevent

the immediate and continued damages it is suffering as a result of the Injunction Defendants’

improper actions.

WHEREFORE, CLEWISTON COMMONS respectfully requests that the Court issue an

order enjoining the Injunction Defendants from enforcing the CITY’s Corrective Actions and

from any further denial of permits in the Property.

COUNT III
INVERSE CONDEMNATION/TAKINGS
(As to Defendant CITY)

97. CLEWISTON COMMONS readopts and re-alleges paragraphs 1 through 75 as if

fully set forth and incorporated herein.

98. This is a Count for an unlawful inverse condemnation or “regulatory taking”

under the 5th Amendment of the United States Constitution and pursuant to 42 U.S.C. § 1983,

and under Article X of the Florida Constitution, alleging that the CITY’s denial of CLEWISTON

COMMONS’ Special Exception application and issuance of the Termination Notices at the

Property at this time would have a detrimental economic effect on CLEWISTON COMMONS

and unreasonably interfere with the reasonable use of Property.

99. CLEWISTON COMMONS has continued the use of the Property in its legal

(grandfathered) non-conforming use and has never abandoned such use, but for the recent denial

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of permits by CITY. CLEWISTON COMMONS continues to this day to pursue permits from the

CITY in order to continue its use of the Property.

100. Defendant is a municipal body of the state of Florida and as such is a “state

actor.”

101. The Property constitutes “private property”.

102. The CITY has not instituted formal eminent domain proceedings to acquire the

private subject property for a public purpose.

103. The recent denial of CLEWISTON COMMONS’ Property permits, enforcement

of Corrective Actions, denial of the Special Exception and issuance of the Termination Notices

each and all deprive CLEWISTON COMMONS of all or substantially all economic, beneficial

use of the Property, and/or unreasonably interfere with its reasonable use of Property amounting

to a “de facto” or “regulatory” taking of Property.

104. For purposes of this Count only, it is assumed arguendo that the CITY’s actions

and decision to enforce Corrective Actions and deny Plaintiff’s Special Exception to Property is

a valid exercise of the police power provided just compensation for the loss in value is paid to

CLEWISTON COMMONS.

105. The CITY has failed to award CLEWISTON COMMONS just compensation for

the value of Property taken by the CITY, and either no adequate state remedy exists for its

failure, the availability of a state remedy is legally irrelevant and/or is cured by the bringing of

this action.

106. The CITY’s actions in denying Property’s Special Exception, enforcing

Corrective Actions and issuing the Termination Notices relating to the Property constitute “final”

actions such that this matter is ripe for judicial review.

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107. Additionally, no further submittal or application by CLEWISTON COMMONS is

necessary where informal efforts have proven such action would be futile and there is no

variance available.

108. Further, assuming the doctrine of “exhaustion of administrative remedies” is

applicable, the CITY’s Charter and Code of Ordinances do not provide any administrative

remedy for or appeal for the denial of Special Exception and for issuance of the Termination

Notices.

WHEREFORE, CLEWISTON COMMONS has stated a cause of action for inverse

condemnation pursuant to the Fifth Amendment of the U.S. Constitution, pursuant to 42 U.S.C. §

1983 and pursuant to the Florida Constitution, and demands relief and prays that this Court

declare CITY has effected a regulatory taking of the Property by either or both the denial of

Special Exception and enforcement of Corrective Actions without just compensation.

COUNT IV
DECLARATORY RELIEF
(As to Defendant CITY)

109. CLEWISTON COMMONS readopts and re-alleges paragraphs 1 through 75, as if

fully set forth and incorporated herein.

110. This is a count for declaratory relief pursuant to Florida’s Declaratory Judgment

Act in Chapter 86, Florida Statutes.

111. A controversy has arisen between CLEWISTON COMMONS and the CITY

resulting in CLEWISTON COMMONS being denied its rights.

112. The CITY’s issuance of the Corrective Actions in the Termination Notices are

inconsistent with legal non-conforming use allowed by the CITY and in the State of Florida.

113. The CITY’s Corrective Actions are directed to limit the right of CLEWISTON

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COMMONS to continue to use the Property in a legal non-conforming use by compelling the

immediate removal of all mobile homes in the mobile home park.

114. The CITY has ratified CLEWISTON COMMONS’ legal nonconforming use

during the past ten (10) years by approving permits for the use of mobile homes, by approving

repairs of out-of-compliance mobile home units and by permitting the open and obvious

continued use of the Property as a mobile home park.

115. The then-city attorney prepared on July 26, 2016, and delivered a legal opinion

Memorandum to REESE and PERRY, who then communicated the Memorandum to

GARDNER, in which it addressed recent trends in the law regarding the termination of lawful

non-conforming uses.

116. The Memorandum explained the following:

[Z]oning regulations do not operate to limit the right of a


landowner to continue the right of a non-conforming use of land
and structures that were in existence at the time of the adoption and
regulation on the theory that it would be injustice and unreasonable
hardship to compel the immediate removal or suppression of an
otherwise lawful business.

117. In enforcing the Corrective Actions, the CITY is arbitrarily and capriciously

requiring CLEWISTON COMMONS to remove all mobile homes from its legal non-conforming

use of the Property. By doing this, the CITY is attempting to severely limit use of the Property

and restrain CLEWISTON COMMONS from use of the Property as a mobile home park.

118. Additionally, the CITY’s interpretation of the zoning ordinances as it is described

in the Memorandum in Exhibit “G,” shows that the CITY’s reason for denial of the continued

use of legal grandfathered mobile homes is merely aesthetical.

119. In an effort to comply with the CITY’s regulations and changes in its enforcement

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of legal non-conforming use, CLEWISTON COMMONS applied for a Special Exception.

120. The CITY denied CLEWISTON COMMONS application for a Special Exception

to continue to repair and replace mobile homes at the Property.

121. During the time CLEWISTON COMMONS submitted its application for a

Special Exception and when the decision was made, CLEWISTON COMMONS continued to

struggle with its inability to replace RV/mobile homes in its mobile home park as the CITY

refused to approve permits for its replacement.

122. The decision to deny CLEWISTON COMMONS’ Special Exception is

inconsistent with the legal non-conforming use allowed in the CITY and in the State of Florida.

123. The Corrective Actions given by the CITY are an arbitrary use of its zoning

powers as it attempts to limit the ability of CLEWISTON COMMONS to continue its legal non-

conforming use of its Property.

124. CLEWISTON COMMONS has no adequate remedy at law, and there is an actual,

practical, and present need for a declaratory judgment to determine the rights of the parties

before large sums of money are invested implementing the Corrective Actions.

125. There is a present ascertained state of facts and controversy as to the legal rights

of the parties that is dependent on the facts and the law applicable to the facts.

126. The interests of the parties are properly before the Court, and the Plaintiff is not

merely seeking legal advice or seeking answers out of curiosity.

WHEREFORE, CLEWISTON COMMONS respectfully requests that the Court issue a

declaration that the Corrective Actions are inconsistent with the CITY’s Zoning Regulations

Powers, Zoning Code and therefore are unconstitutional.

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COUNT V
TORTIOUS INTERFERENCE
(As to Defendants CITY, GARDNER, PERRY, REESE, and MCNEIL)

127. CLEWISTON COMMONS readopts and re-alleges paragraphs 1 through 75 as if

fully set forth and incorporated herein.

128. This is an action by CLEWISTON COMMONS against the CITY, GARDNER,

PERRY, REESE, and MCNEIL (“Tortious Interference Defendants”) for tortious interference

with a business relationship.

129. CLEWISTON COMMONS owns Property that has been used in a legal non-

conforming use for the past ten (10) years and legal conforming use for several years before

then.

130. CLEWISTON COMMONS has operated the Property as a mobile home park and

leases mobile homes to members of the community. CLEWISTON COMMONS’ use of the

Property is contingent on, among other things, issuance of operating permits by the CITY to

CLEWISTON COMMONS and to the residents of the Property.

131. CLEWISTON COMMONS has entered into numerous business and contractual

relationships with various contractors, consultants, and vendors in connection with the

continuous use of the Property. The Tortious Interference Defendants have knowledge of these

relationships.

132. Additionally, CLEWISTON COMMONS has active lease contracts with dozens

of lessee’s of lots at the Property. The Tortious Interference Defendants also have knowledge of

these relationships.

133. The CITY has repeatedly ratified the use of subject Property as a mobile park in a

legal non-conforming use. Specifically, the CITY has provided permits for the subject Property

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for more than ten (10) years.

134. However, now the Tortious Interference Defendants have intentionally and

unjustifiably interfered with all of these relationships by, among other things, refusing to approve

further permits and by issuing the Termination Notices to remove all mobile homes within

Property. Without these permits and by attempting to enforce the CITY’s Termination Notices,

all of CLEWISTON COMMONS’ business and contractual relationships with respect to

Property are in jeopardy.

135. CLEWISTON COMMONS has been and will continue to be severely damaged

by the Tortious Interference Defendants’ interference.

WHEREFORE, CLEWISTON COMMONS demands judgment in its favor for damages,

together with an award of fees and costs and all such other relief this Court deems just and

proper.

COUNT VI
VIOLATION OF FLORIDA STATUTE 286.011 ET. SEQ.
(As to Defendants CITY, PERRY and COMBASS’ Violation of Florida’s Government in
the Sunshine Law)

136. CLEWISTON COMMONS readopts and re-alleges paragraphs 1 through 75 as if

fully set forth and incorporated herein.

137. The CITY has made many decisions regarding CLEWISTON COMMONS’

Property as described herein which were required to be made “in the Sunshine,” but which

instead violated the Florida Sunshine Law.

138. Pursuant to Florida Statute 286.011, et. seq., all such decisions regarding permits

and any decisions on Special Exceptions must be made in the Sunshine, which requires inter

alia, that for each such decision there be conducted a public meeting which meets the following

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criteria:

a. The meetings must be open to the public;

b. Reasonable notice of such meetings must be given; and

c. Minutes of the meetings must be taken.

139. As described herein, many, if not all of the meetings concerning the legal non-

conforming use of the Property segment violated all of these above-required provisions of the

Florida Sunshine Law.

140. Many decisions regarding the subject Property were made in the absence of any

public meeting, and were made behind closed doors, in secret.

141. Many of the decisions regarding the Property were made without proper notice to

the public.

142. Many of the decisions regarding the Property were made without any public

meetings, or if public meetings were conducted, proper minutes were not taken.

143. MCNEIL and PERRY discussed the Property and the course of action the CITY

must take among themselves and with the City’s Attorney outside of public meetings and

without notice to anyone.

144. The CITY further kept documents out of the public records and refused to

produce such documents, including but not limited to an opinion letter prepared by the then-city

attorney, regarding the operation of legal non-conforming properties.

145. According to the Florida Attorney General, AGO 03-53 “In the spirit of the

Sunshine Law, the city commission should be sensitive to the community’s concerns that it be

allowed advanced notice and, therefore, meaningful participation on controversial issues before

the commission.”

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146. It is hard to imagine any issue more controversial than those surrounding the

proposed removal of mobile homes from Property, leaving many without a home within the 180

days, as required by the CITY.

147. As a statute enacted for the public benefit, the Sunshine Law should be liberally

construed to give effect to its public purpose while exemptions should be narrowly construed

according to all case law on subject. The courts have also recognized that the Sunshine Law

should be construed so as to frustrate all evasive devices.

148. The Courts consider the Sunshine Law to be of such importance, especially when

relating to issues of such importance as those involved herein, that the Courts require that if a

Board member is unable to determine whether a meeting is subject to the Sunshine Law, the

Board member should either leave the meeting or ensure that the meeting complies with the

Sunshine Law.

WHEREFORE, CLEWISTON COMMONS respectfully requests that this Court declares

the actions of the CITY and of all governmental agencies and bodies named herein, including but

not limited to the CITY Board of County Commissioners to be in violation of the Florida

Sunshine Law, F.S. 286.011 et. seq.; declare invalid and of no legal force all Corrective Actions

given by the CITY.

RELIEF REQUESTED

WHEREFORE, CLEWISTON COMMONS respectfully requests that this Court:

a. issue a declaration that the denial of the Special Exceptions and issuance of

the Termination Notices are violation of CLEWISTON COMMONS’ equal

protection and due process rights; inconsistent with the CITY’s Zoning

Regulations Powers, Zoning Code and therefore are unconstitutional;

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b. issue both a preliminary and a permanent injunction against the CITY’s

enforcement of the Termination Notices that demand the removal of mobile

homes from the Property;

c. reverse, set aside, quash, and vacate the Termination Notices;

d. order the CITY to issue permits for vacant lots;

e. award of all attorney’s fees, costs, and expenses incurred by CLEWISTON

COMMONS in the prosecution of this action pursuant to 42 U.S.C. §§ 1983

and 1988;

f. award costs of this action to CLEWISTON COMMONS; and

g. grant CLEWISTON COMMONS such other and further relief as the Court

may deem just and proper.

Respectfully submitted,

INTERNATIONAL LAW PARTNERS LLP


Attorneys for the Plaintiff
2122 Hollywood Blvd.
Hollywood, FL 33020
PH: (954) 374-7722
FAX: (954) 212-0170

By: _/s/YASIR BILLOO____________________


Yasir Billoo, Esq.
Florida Bar No. 718351
ybilloo@ilp.law
Karen E. Berger, Esq.
Florida Bar No. 72991
kberger@ilp.law

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 5th day of November, 2018, I electronically filed the
foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record or pro se parties identified on the
attached Service List in the manner specified, either via transmission of Notices of Electronic
filing generated by CM/ECF or in some other authorized manner for those counsel or parties
who are not authorized to receive electronically Notices of Electronic Filing.

INTERNATIONAL LAW PARTNERS LLP


2122 Hollywood Blvd.
Hollywood, FL 33020
Phone: (954) 374-7722
Fax: (954) 212-0170

By:___s/YASIR BILLOO______
Yasir Billoo
Florida Bar No.: 0718351

SERVICE LIST

HENDERSON, FRANKLIN, STARNES & HOLT


Attorneys for Defendant
Post Office Box 280
Fort Myers, Florida 33902-0280
Telephone: 239.344.1346
Facsimile: 239.344.1501
Primary: Robert.shearman@henlaw.com
Secondary: Courtney.ward@henlaw.com

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