Janice Ellery's Constitional Challenge

06-60078
CIV-COOKE
MAGISTRATE JUDGE BROWN
FILED BY ______
2006 JAN 19 PM 2:23

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
MAGISTRATE JUDGE BROWN

Case No: 06-60078

JANICE ELLERY,

Plaintiff,

vs.

CITY OF COCONUT CREEK FLORIDA,
a municipal corporation of the State of Florida

Defendant.
__________________________/

COMPLAINT FOR DAMAGES
AND INJUNCTIVE RELIEF AND
DEMAND FOR JURY TRIAL

Plaintiff JANICE ELLERY files this COmplaint against Defendant CITY OF COCONUT CREEK, FLORIDA, a municipal corporation within the State of Florida, for injunctive and declaratory relief, damages, and costs and attorney's fees as a result of the CITY's violation of her constitutional right to free speech, to access to the courts and to petition the government for redress of grievances, guaranteed by the First Amendment to the United States Constitution, as accused by 42 U.S.C. 1983.

I. NATURE OF THE CASE

1. This is an action for declaratory and injunctive relied and compensatory damages. ELLERY seeks a declaration of the invalidity of Paragraph 13 of CITY OF COCONUT CREEK Resolution 2005-03 ("the Funding Agreement") adopted by the city which unconstitutionally chilled ELLERY from exercising her First Amendment right to pursue a legal claim challenging the City's decision to rezone her mobile home park to another use.

II. PARTIES

2. Plaintiff JANICE ELLERY (hereinafter "ELLERY") is an adult female and a resident of the CITY OF COCONUT CREEK, Florida.

3. ELLERY has been a resident of Coral Lake Mobile Home Park, located within the city limits of Defendant CITY OF COCONUT CREEK (hereinafter "CITY OF COCONUT CREEK" OR "CITY"), since 2001.

4. The CITY OF COCONUT CREEK is a municipal corporation within the State of Florida that is engaged in the business of local government, created under the laws of the State of Florida, and has its principal business located in the CITY OF COCONUT CREEK, Florida.

5. The CITY OF COCONUT CREEK operates under a Commission- Manager form of government.

6. There are five Commissioners on the Coconut Creek City Commission. Although each Commissioner represents a specific district within the City, they are elected at large.

7. In addition, the Mayor and Vice Mayor are selected by the Commissioners from among themselves and serve in their positions for a period of one year.

8. The City Commission of the Defendant CITY OF COCONUT CREEK has final decision making authority to enact City ordinances and resolutions.

III. JURISDICTION AND VENUE

9. This Court has jurisdiction of the federal claims asserted herein pursuant to 28 U.S.C. 131 and 28 U.S.C. 1343(3).

10. Venue in the Southern District of Florida is proper under 28 U.S.C. 139(b). This claim arose in the CITY OF COCONUT CREEK, concerns actions taken by that municipality and Plaintiff ELLERY is a resident of CITY OF COCONUT CREEK.

IV. FACTS

11. Coral Lake Mobile Home Park is a two hundred twenty-three (223) unit mobile home park located within the city limits of the CITY OF COCONUT CREEK, FLORIDA at 4701 Lyons Road.

12. The residents of the Coral Lake Mobile Home Park include families and individuals who own or rent mobile homes. The mobile home owners lease the property on which their mobile homes are located within the mobile home park.

13. Plaintiff ELLERY owns her mobile home and leases the property on which it rests from the owners of the Coral Lake Mobile Home Park property, Coral Lake MHC Limited Partnership (hereinafter "Owner").

14. On or about July, 2004, the Owner of Coral Lake Mobile Home Park and a developer WP South Acquisitions, LLC (hereinafter "Developer"), entered into a purchase contract and, pursuant thereto, applied to rezone the land use of the mobile home park.

15, The requested application to rezone the property on which the Coral Lakes Mobile Home Park is located sought to rezone the site from a "MHP" (mobile home park) site to a PUD (planned unit development) site.

16. This rezoning would enable the Developer to develop town homes on the Coral Lakes Mobile Home Park site for a project known as "Paloma Lakes."

17. The requested rezoning would result in the relocation or removal of approximately one hundred eighty four (184) mobile home park resident households living in the Coral Lakes Mobile Home Park at that time.

18. Florida Statute 723.083 (20050 provides as follows:

Government action affecting removal of mobile home owners. -No agency of municipal, local, county, or state government shall approve any application for rezoning, or take any other official action, which would result in the removal or relocation of mobile home owners residing in a mobile home park without first determining that adequate mobile home parks or other suitable facilities exist for the relocation of the mobile home owners.

19. On or about November, 2004, the City of Coconut Creek Planning and Zoning Board considered the rezoning application of the Owner and Developer but tabled the issue for further study.

20. In November, 2004, residents of the Coral Lake Mobile Home Park objected to the rezoning application on the grounds that it did not comply with Fla. Stat. 723.083, which requires that a mobile home park cannot be rezoned unless adequate mobile home parks or other suitable facilities exist for the relocation of the mobile home.

21. On June 8 2005, the City of Coconut Creek Planing and Zoning Board net a second time to consider the rezoning application without addressing the issue of compliance with Fla. Stat. 723.083, which the City Commission had determined was in the Commission's jurisdiction and would be the subject of the City Commissioner's meeting the next day, on June 9, 2005.

22. At the June 8, 2005 meeting, several residents of the Coral Lake Mobile Home Park, including Plaintiff ELLERY, objected to and raised concerns about the rezoning application.

23. At the June 9, 2005 City Commission meeting, the Commission held a quasi-judicial hearing as to whether there was adequate mobile home space or other suitable facilities for relocation of the Coral Lake Mobile Home Park residents mobile home owners.

24. At the June 9, 2005 Commission meeting, the Developer presented evidence which purported to demonstrate the availability of replacement housing for the Coral Lakes Mobile Home Residents.

25. Numerous Coral Lakes Mobile Home residents including Plaintiff ELLERY, Aaron Vanterese, Sheila Ullsom, Steven Williams, and Herbert Gill also testified at the June 9, 2005 Commission meeting in opposition to the Developers position regarding the existance of adequate mobile home parks or other suitable facilities to which the residents could relocate.

26. Plaintiff ELLERY testified at that hearing concerning her own study and research which challenged and controverted the developer's evidence and presented her own evidence showing the lack of suitable alternative housing and adequate mobile home parks which were available for the Coral Lakes Mobile Homes Park residents to relocate.

27. At the June 9, 2005 Commission meeting, the City Commission determined that adequate mobile home parks or other suitable facilities existed for the relocation of the mobile home owners pursuant to Fla. Stat. 723.083 (2005).

28. Moreover, on June 9, 2005, the City Commission also agreed in principle, subject to formal approval by the City Commission, to participate in a funding plan to assist current residents of Coral Lake Mobile Home Park to relocate. Accordingly, a "Housing Assistance Fund" in the amount of $ 900,000.00, of which the City would contribute $ 200,000.00, would be established to provide residents of the Coral Lake Mobile Home Park financial assistance for relocation caused by their displacement as a result of the rezoning decision (hereinafter the "Housing Assistance Fund" or "Relocation Fund").

29. Because of the vocal and strenuous opposition from numerous Coral Lake Mobile Home residents to the rezoning application, City Attorney Paul Stuart proposed the addition of a "litigation caveat" to the housing Assistance Fund because there was a "cloud of a lawsuit" over the rezoning decision. The "litigation caveat" would rescind the establishment of the Fund for all residents of the Coral Lake Mobile Home Park if any one resident asserted a legal challenge to the CITY's rezoning decision within the thirty (30) day appellate period.

30. The City Commission agreed with and adopted Attorney Stuart's proposal and decided that a provision would be included in the Funding Agreement which would rescind the relocation funding to all the Coral Lake Mobile Home Park residents if any legal challenge to the rezoning decision was filed.

31. On June 23, 2005, the City Commission, on a second reading, passed City Ordinance No. 2005-027, which approved the rezoning of the Coral Lake Mobile Home Park property.

32. At the same June 23, 2005 meeting, the City Commission adopted Resolution 2005-03 which approved the Agreement to create the Housing Assistance Fund which included the "litigation caveat." Plaintiff ELLERY and other park residents objected to the proposed language as an effort by the City to deter and intimidate Park residents from lawfully challenging the CITY's zoning decision in court.

33. The "litigation caveat," which became Paragraph 13 of the Funding Agreement, provides:

Effective Date. This Agreement shall become effective upon the expiration of the 30-day appeal period for the Finding and Development Approvals {"Appeal Period") if no appeals or other litigation has been filed during the Appeal Period ("Effective Date"). If any Finding or Development Approval is appealed or otherwise subject to a litigation challenge within the Appeal Period, this Agreement shall be null and void and of no further force and effect. In the event litigation is filed within the Appeal Period, the Fine Amount shall be due and owing to the CIty and shall be payable within thirty (30) days after the litigation challenging the Finding, or any of the Development Approvals, is served on the City, except that the time for payment of the Fine Amount is extended by vote of the City Commission.

34. The "litigation caveat" (paragraph 13 of the Funding Agreement) was adopted by the City to deter Coral Lake Mobile home Park residents, who had objected to the rezoning decision, including Plaintiff JANICE ELLERY, from filing a legal challenge.

35. At the June 23, 2005 meeting, Vice-Mayor James Waldman threatened residents of the Coral Lake Mobile Home Park and described residents who voiced opposition or an intention to legally challenge the rezoning decision as "selfish" and "unfair" to their fellow residents and actively encouraged Coral Lake Mobile Home Park residents to stop and/or prevent their neighbors from legally challenging the City's rezoning decision.

36. Vice-Mayor James Waldman admonished that opponents of the CITY's zoning decision who contemplated legal action "may ruin the deal for everyone."

37. Plaintiff JANICE ELLERY was a vocal opponent of the CITY OF COCONUT CREEK's decision to approve the rezoning application of the Coral Lake Mobile Home Park.

38. ELLERY expressed that the CITY's "litigation caveat" and subsequent encouragement to mobile home park residents to stifle opposition would place known opponents of the CITY's decision in peril of harassment, property damage and/or physical injury.

39. On July 25, 2005, at approximately 4:30 p.m. thirty (30) days after the rezoning decision, Coral Lake Mobile Home Park resident Aaron Vantrease filed a legal action challenging the CITY OF COCONUT CREEK's compliance with Fla. Stat. 723.083 (2005).

40. On July 27, 2005, City Attorney Paul Stuart implemented Paragraph 13 of the Funding Agreement by advising the City Commission and City Manager that, because a lawsuit had been filed, the Funding Agreement was "null and void."

41. Specifically, City Attorney Paul Stuart advised the City Manager and City Commission as follows:

This is to advise that a lawsuit has been filed in the Broward County Circuit Court by Coral Lake Mobile Home Park resident Aaron Vantrease . . .

The lawsuit is in the nature of a Petition for Writ of Certiorari, which essentially is a demand upon the Court to review the rezoning of the property, and a legal attack upon the City Commission decision that adequate mobile home parks and other suitable facilities exist for the relocation of the Coral Lake Mobile Home Park tenants/owners. You will recall that the City Commission was required by Section 723.083 of the Florida Statutes to make this determination as a precondition for the rezoning and plat approval that followed . . .

I do want to remind you that the Agreement approved by the City Commission (commonly refereed to as the funding agreement), is null and void and of no further force and effect pursuant to the terms and conditions of Paragraph 13. As a result thereof, no "fund" has been or will be set up for the benefit of the residents of Coral Lake Mobile Home Park. (Portions omitted).

42. By the time that Plaintiff ELLERY learned that Mr. Vantrease had filed a lawsuit challenging to the rezoning decision and that the City had rescinded the relocation funding agreement, the thirty (30) day limitation period for Plaintiff ELLERY to file a legal challenge to the rezoning decision expired.

43. Plaintiff ELLERY did not file a legal challenge because she did not want to cause the rescinding of the Funding Agreement for all of the residents of Coral Lake Mobile Home Park. ELLERY was willing to waive her individual access to the Fund so that she might be permitted to challenge the CITY's decision without affecting the ability of all other residents to obtain funding assistance.

44. At all times material hereto, Plaintiff JANICE ELLERY openly and publically advocated that the CITY OF COCONUT CREEK should not approve the rezoning application for Coral Lake Mobile Home Park because adequate relocation facilities for its residents to not exist within the meaning of Fla. Stat. 723.083 (2005).

45. Beginning in June, 2005, Plaintiff JANICE ELLERY was harassed and verbally and physically threatened by residents of Coral Lake Mobile Home Park as a result of the CITY OF COCONUT CREEK's creation of the litigation caveat and its encouragement to Park residents to stop and/or prevent residents from legally challenging the rezoning decision.

46. Plaintiff JANICE ELLERY was aware that other Park residents who opposed the City's rezoning decision were harassed and verbally and physically threatened by residents of Coral Lake Mobile Home Park as a result of the CITY OF COCONUT CREEK's creation of the litigation caveat and it's encouragement to Park residents to stifle the opposition of its residents in order to obtain relocation funds.

47. As a result of the CITY's passage of Funding Agreement with Paragraph 13 litigation caveat, Plaintiff ELLERY did not lawfully challenge in court the CITY's rezoning decision, which she strenuously and vocally opposed, because to do so would result in all of the residents of Coral Lake Mobile Home Park losing necessary relocation monies as a result of her exercise of her rights to voice her opinion, her right to challenge the CITY's decision in a court of law and/or the exercise of her right to gain access to the courts.

48. As a result of the CITY OF COCONUT CREEK's actions, Plaintiff ELLERY has been damaged.

V. CLAIMS FOR RELIEF

Count I - 42 U.S.C. 1983 -
Violation of the First Amendment to the United States Constitution

49. Plaintiff JANICE ELLERY realleges Paragraphs 2 through 8 and 11 through 48 as if fully incorporated herein.

50. Plaintiff ELLERY, in voicing opposition to the CITY OF COCONUT CREEK's zoning decisions, was engaging in constitutionally protected activity.

51. The CITY OF COCONUT CREEK's City Commission, by adopting Resolution No. 2005-03, the Funding Agreement, including the Paragraph 13 "litigation caveat," chilled Plaintiff ELLERY's exercise of her First Amendment rights and prevented her from pursuing a legal challenge to the City's rezoning decision in violation of her right of access to the courts which is guaranteed by the First Amendment right to petition the government for the redress of grievances.

52. The CITY's actions that prevented ELLERY from exercising her First Amendment rights were actions taken under color of law and violated ELLERY's rights secured by the first Amendment to the United States Constitution and as secured by 42 U.S.C. 1983.

53. As a direct and proximate result of the conduct described in herein, Plaintiff ELLERY has been denied the opportunity to exercise her First Amendment rights and has suffered emotional damages as a result of the CITY's actions designed to prevent her from exercising her constitutional rights.

VI. PRAYER FOR RELIEF

WHEREFORE, Plaintiff JANICE ELLERY respectfully requests that this Court enter a judgment awarding her all such legal and/or equitable relied as will effectuate the purposes of the First Amendment to the United States Constitution and 42 U.S.C. 1983, including, but not limited to:

A. A Declaration that Paragraph 13 of Resolution No. 2005-3 (Funding Agreement), adopted by Defendant CITY OF COCONUT CREEK on June 23, 2005, violated Plaintiff ELLERY's rights secured by the First Amendment to the United States Constitution:

B. Injunctive relief designed to remedy the violation of Plaintiff ELLERY's First Amendment rights including, but not limited to:

1) requiring the CITY to take all necessary action to provide Plaintiff ELLERY the opportunity to challenge the CITY's rezoning decision;

2) requiring the CITY to take all necessary action to ensure that the intended potential beneficiaries of Resolution no. 2005-3 (Funding Agreement), aside from residents who file a legal challenge to the rezoning decision, receive the benefits that they would have otherwise received absent Paragraph 13, the "litigation caveat;" and

3) precluding the CITY from instituting unconstitutional measures in the future designed to deter CITY residents from exercising their First Amendment right to petition the government and/or seek redress of grievances against the CITY.

C. An award of compensatory damages pursuant to 42 U.S.C. 1983;

D. An award of costs and reasonable attorney's fees pursuant to the Civil Rights Attorney Fees Awards Act of 1976, 42 U.S.C. 1988; and

F. Any and all other relief the Court deems just and appropriate.

VII. DEMAND FOR JURY TRIAL

Plaintiff ELLERY requests a trial by jury on all issues so triable.

RESPECTFULLY SUBMITTED,
ROBERT E. WEISBERG (sig)
Robert E. WEISBERG
Florida Bar No. 285676

KIMBERLY A. McCOY (sig)
KIMBERLY A. McCOY
Florida Bar No. 0153729

LAW OFFICES OF ROBERT E. WEISBERG
1450 Madruga Avenue, Suite 209
Coral Gables, Florida 33146
(305) 666-6095
(305) 666-6296 (fax)
reweisberg@aol.com
ATTORNEYS FOR PLAINTIFF

DATE: January 19, 2006