Editor’s note: The following piece of advice to the Fernandina Beach City Commission was written by an eminent attorney who has a home in the city’s historic district. It is rather heavy reading – but worth it for people who care about preserving the character of all the city’s neighborhoods. We think this is a very important document that should be available to all citizens. Here is a summary to get you started:
A developer has asked the city to approve demolishing four homes surrounded by the Historic District and putting in 12 townhouses on South Fourth Street. The neighbors have objected and asked that the matter be referred to the Board of Adjustment. The city attorney has argued against that. Mr. Bradford Clark says failing to make the referral would open up the entire city to intrusive developments that destroy the character of its many pleasant neighborhoods.
To: The Fernandina City Commission
From: Bradford R. Clark, 312 Ash St.
Re: Equal Protection Issues re Resolution 2023-23 (“Third and Beech” Townhome Proposal)
Date: Feb. 3, 2023
I live at 312 Ash St., around the corner from the proposed townhome development and my neighbors, Merry and David Coalson (111 S. Fourth St.) and Taina Christner (406 Beech St.). I split my time between Fernandina Beach and Washington, D.C., and have spent the majority of my time in Fernandina since 2021. I have been a professor of law at George Washington University Law School since 1993, where I have taught Constitutional Law, Civil Procedure, and Federal Courts. Before becoming a law professor, I served as a law clerk to Judge Robert Bork on the U.S. Court of Appeals for the D.C. Circuit, and subsequently as a law clerk to Justice Antonin Scalia on the Supreme Court. From 2003-10, I served as a Special Master appointed by the Supreme Court of the United States to help resolve an original action between States and the Court adopted all of my recommendations. See Alabama et al. v. North Carolina, 560 U.S. 330 (2006).
Like my neighbors, I am concerned about the proposal to bypass the Board of Adjustment and approve replacing four homes on South Fourth Street with a townhome development that would change the character of the neighborhood. I urge you to reject the application or send the matter to the Board of Adjustment as unanimously recommended by the Planning Advisory Board. This memorandum addresses the Equal Protection issue raised by the city attorney. In my opinion, if you deny the application regarding the Tringali property or send it to the Board of Adjustment, the developer and the property owner will not have a valid claim under the Equal Protection Clause, as revealed by the caselaw discussed below. On the other hand, if the commission were to approve this proposal without sending it to the Board of Adjustment, it would establish an extremely bad precedent that could require the city to approve all future requests to subdivide residential property within the city to build townhome developments.
Let me begin with what the City Attorney, Ms. Bach, said at the Jan. 3, 2023 commission meeting. (https://fernandinabeachfl.new.swagit.com/videos/196083) First, she reported that she and the city staff looked at how the city treated other property owners in the past. She stated that “what we found was that in every single occasion where there was a subdivision that was requested, and there were underlying lots of record and existing buildings—this is for over 20 years—we have sent them through the platting process, which is exactly what we’re doing with the Tringali property.” The city attorney was mistaken, as the material presented by Taina Christner (406 Beech St.) shows that since 2016 the city has sent several subdivision requests by other similarly situated property owners to the Board of Adjustment. Pre-2016 records are not available online, but presumably they would reveal additional examples.
Second, the city attorney raised an Equal Protection issue that she said would arise if the Tringali application were rejected or sent to the Board of Adjustment. Here is what she said on Jan. 3, 2023:
“In land use law, if you treat similarly situated property owners differently, and make the developers of the Tringali property, for example, go for a variance when we have not done that before for over 20 years of similarly situated property owners, I would put the city at risk by telling you to send the developers for the Tringali property to the Board of Adjustment. That’s what we risk, an Equal Protection federal lawsuit that says that we treated them differently. I’ve confirmed that tonight. I will send you caselaw, Dr. Ross. The Supreme Court of the United States in 2019 addressed this very issue, and that is our exposure. My job is to try to not get the city sued and if there is a dispute where somebody’s going to sue to take the path of least resistance, the least risky to the city. So that is why I gave my advice.”
I agree with the principle Ms. Bach stated—that similarly situated property owners should be treated the same—but denying the request to subdivide the Tringali property would not violate this principle for two reasons. First, as just noted, the city has previously sent similarly situated property owners seeking to subdivide property within the city to the Board of Adjustment. Second, all of the examples allowing subdivision without going to the Board of Adjustment provided by the city attorney (in an e-mail dated Nov. 20, 2022 in response to a records request) involved annexation and subdivision of property that had been outside of the city. Accordingly, these properties are not “similarly situated” to the Tringali property, which has been located in the city for well over a century.
The relevant Equal Protection principles were set forth and applied in Campbell v. Rainbow City, 434 F.3d 1306 (11th Cir. 2006). There, developers sued alleging an Equal Protection violation because the city denied their application for a variance to build a high-density apartment building on property zoned for lower-density. The developers pointed to several other developments approved by the city, but the court held that these projects were not sufficiently similar to the proposed development, and thus found that there was no Equal Protection violation. The court stated the law as follows:
To prevail on this traditional type of equal protection claim, basically a selective enforcement claim, that the city’s ordinance was applied to them, and not [to] other developments, plaintiffs must show (1) that they were treated differently from other similarly situated individuals, and (2) that defendant unequally applied a facially neutral ordinance for the purpose of discriminating against plaintiffs.
Id. at 1314. Importantly, the court stressed that “in order for any development to be similarly situated to plaintiffs’ proposed project, it must be prima facie identical in all relevant respects.” Id. The plaintiffs pointed to several other developments, including a credit union, a medical office, and lower-density apartment buildings, but the court found that none of these examples were sufficiently identical to the project proposed by the current developers. In addition, the court stated that, in order to advance their claim, “Plaintiffs would need to provide a record of what the [previous] developer had brought before the Planning Commission when it was granted tentative approval” in order to show that there could be no rational basis for distinguishing the two projects. Id. at 1315. Because the projects were not “identical in all relevant respects,” the court dismissed the claim.
Under this precedent, the Tringali property developers could bring a successful Equal Protection claim only if they could prove that the city had previously approved the subdivision of residential property to build a substantially identical townhome development (in terms of size, density, and surrounding neighborhood) as proposed for the Tringali property. None of the examples of previous subdivisions provided by the city attorney involved projects identical in all relevant respects to the proposed townhomes on South Fourth Street, and all of the examples she provided involved annexations. The townhomes recently constructed on South Third and South Second Streets are not comparable (let alone identical) to the proposed development because they were built on property not zoned residential and that had never had houses on the land (historically, it had been a lumber yard). Thus, under the Eleventh Circuit’s Campbell decision, the Tringali developers and property owners would not have a valid Equal Protection claim if the city denied subdivision of the property to build townhomes.
At the Jan. 3, 2023 City Commission meeting, Ms. Bach said that she could send Dr. Ross caselaw to support her position on Equal Protection, and said that “[t]he Supreme Court of the United States in 2019 addressed this very issue.” I contacted the city attorney’s office to request copies of this caselaw. In response, Katie Newton, the City Attorney’s Legal Assistant, provided me with two lower court decisions. When I inquired again about the U.S. Supreme Court case cited by Ms. Bach, Ms. Newton replied that the Supreme Court had actually declined to hear the case in question. None of the cases cited by the city attorney’s office supports an Equal Protection claim in this case. When the Supreme Court denies certiorari to hear a case, it is not a decision on the merits and has no precedential effect. In any event, the Florida decision that the Supreme Court declined to review actually denied a property owner’s Equal Protection claim because the county had a rational basis for the government’s land use decision. See Pinellas County v. Richman Group of Florida, 253 So. 3d 662 (2017 Fla. App.), cert. denied 2019 U.S. LEXIS 2208.
The Eleventh Circuit recently applied the Campbell framework to reject an Equal Protection claim by a property owner who sought to replace a traditional beach-front mansion with a larger mid-century modern mansion because the plaintiff could not show that he was treated differently than similarly situated property owners. See Burns v. Town of Palm Beach, 999 F.3d 1317, 1352 (11th Cir. 2021). Similarly, the United States District Court for the Middle District of Florida applied the Campbell framework to reject an Equal Protection challenge to a county’s delay or denial of a property owner’s applications for various permits. As in Campbell, the court stressed that the plaintiff had to show that he was treated differently than similarly situated comparators, and that to be considered similarly situated, comparators must be prima facie identical in all relevant respects. See Dibbs v. Hillsborough County, Florida, 67 F.Supp.3d 1340, 1354-55 (M.D. Fl. 2014).had a rational basis for the government’s land use decision. See Pinellas County v. Richman Group of Florida, 253 So. 3d 662 (2017 Fla. App.), cert. denied 2019 U.S. LEXIS 2208.
The two other decisions I received from Ms. Newton in support of the city attorney’s position are distinguishable from the Tringali proposal. In the first case Bodnar v. Town of Jupiter Inlet Colony, 321 So. 3d 774 (2021 Fla. App.), the court dismissed the property owners’ Equal Protection claim because they failed to demonstrate that the town acted with a discriminatory purpose. In the second case, City National Bank of Florida v. City of Tampa, 67 So. 3d 293 (2011 Fla. App.), the owners alleged that their project was singled out and treated differently from other similarly situated properties with no rational basis. The court allowed the Equal Protection claim to proceed in this case because the zoning administrator—for the first time ever—interpreted the city ordinances to require two 25-foot front-yard setbacks rather than one such setback. In over 10,000 previous similar situations, the city had interpreted the ordinances for a corner property like the one at issue to require only one setback of 25 feet. This case is clearly distinguishable from the Tringali case because the city of Fernandina is not creating a new rule for one property. Other subdivision requests have been sent to the Board of Adjustment when seeking subdivision so sending the Tringali proposal would not be unique.
While I applaud the city attorney’s goal of shielding the city from legal liability, her opinion in this case is unsupported by the facts and the law. Indeed, if the City Commission were to approve the Tringali townhome proposal without sending it to the Board of Adjustment, it would set an extremely bad precedent that could require the city to allow all other similarly situated property owners in the city to subdivide their properties for the purpose of building identical townhome developments. By one estimate, there are approximately 1000 properties within the city limits with underlying lots of record that could potentially be redeveloped into townhomes if this project is approved by the commission. If even a fraction of these properties were redeveloped into townhomes, it would fundamentally change the character of the city of Fernandina Beach to the detriment of all city residents.