10th STREET PARTNERS, LLC v. COUNTY COMMISSION FOR SARASOTA COUNTY
United States District Court, M.D. Florida, Tampa Division.
September 20, 2012.
Although the Board asserts that it did not limit 10th Street's testimony at the February 22, 2012, hearing, the transcript of the hearing shows that at the beginning of 10th Street's presentation, Commissioner Nora Patterson stated to 10th Street's representative, Bo Medred, "Bo, you know the drill and you'll have 20 minutes." (Hr'g Tr. Doc. # 7-1 at 11). At the end of 10th Street's 20 minutes, Patterson interrupted Medred to alert him that the 20 minute period had expired and allowed him an additional 30 seconds to wrap up. Id. at 28. 10th Street's presentation was followed by a public testimony session, a 5-minute rebuttal period by 10th Street, and questions from the Board members, none of which specifically addressed the reasonable accommodation issue, after which the Board voted to deny the zoning variance request.
10th Street contends that it did have more evidence to present to support its reasonable accommodation request if more time had been allowed. Indeed, the transcript shows that 10th Street specifically informed the Board that its attorney was present to discuss the reasonable accommodation request if the Board had questions about it. Id. at 23-24. Furthermore, 10th Street contends that the Board's failure to ask any questions about the reasonable accommodation request also effectively prevented 10th Street from submitting sufficient evidence in support. 10th Street asserts that the Board's failure to ask any questions of its attorney on the reasonable accommodation request or request any further evidence in support of the request reasonably led it to believe that its arguments and evidentiary presentation on the issue were sufficient and that further evidence was not needed.
The Court agrees with 10th Street that issues of material fact remain which preclude summary judgment at this time. Based on the time limitation of only 25 total minutes allowed to 10th Street for its presentation and based on the Board's failure to ask to hear the further evidence proffered by 10th Street at the hearing, a jury could reasonably find that the Board prevented 10th Street from submitting sufficient evidence in support of its reasonable accommodation request.
Notwithstanding the above, the Court is mindful that the Board responded to 10th Street's May 9, 2011, demand letter seeking reconsideration of the Board's decision, by requesting 10th Street to provide more evidence demonstrating why 10th Street's requested accommodation was necessary. (Doc. # 9-2 at 74). However, rather than providing the additional evidence at that time, by letter dated June 24, 2011, 10th Street's counsel requested the Board to first re-open the zoning variance petition for reconsideration upon which 10th Street would consider submitting additional evidence demonstrating the necessity of the accommodation. Id. at 76-78. Based on 10th Street's failure to provide additional evidence in response to the Board's request, the Board adopted Resolution No. 2011-147 on July 27, 2011, which expressly denied the reasonable accommodation request.
Although the Board contends that its June 16th invitation to supply more evidence demonstrates that it did not prevent 10th Street from presenting sufficient evidence in support of its reasonable accommodation request, the Court agrees with 10th Street that questions remain regarding what effect any additional evidence would have had at that point, given that the Board had already denied the zoning variance petition and had not agreed to re-open the petition for reconsideration. Indeed, the Board's Resolution No. 2011-147 expressly states that the Board in fact "cannot reopen the public hearing months after its final action to reconsider Rezone Petition No. 10-13." (Doc. # 24-1 at 3).
Because the Board apparently could not re-open the zoning variance hearing for reconsideration even if 10th Street had provided further evidence on the issue, a jury could reasonably find that Defendant's request for further evidence did not actually provide 10th Street with an opportunity to present sufficient evidence in support of its reasonable accommodation request. Thus, as it appears that the Board's denial of the accommodation request at the February 22, 2011, hearing was effectively the final decision on the issue, and given that the Court has determined that a genuine issue of material fact remains as to whether the Board prevented 10th Street from presenting sufficient evidence at the hearing, the Court finds that summary judgment is not warranted at this time.
However, the Court notes that even if it were to consider all of the evidence permitted under the Federal Rules in evaluating 10th Street's claims (either by adopting 10th Street's preferred scope of review or by finding that the exception to Defendant's preferred standard applies), although 10th Street claims to possess sufficient evidence to demonstrate that its requested accommodation is reasonable and necessary under the ADA, FHA, and RHA, it does not appear that 10th Street has filed such evidence on the record for the Court's consideration. Instead, 10th Street argues that the summary judgment motion is premature as it was filed prior to discovery taking place and asserts that discovery is necessary to "shed light on a number of issues that are factually material to this action." (Doc. # 23 at 21).