Subject:
Title
Settlement of Atlantic Housing Partners L.L.L.P., et al v. Brevard County, Case No. 6:23-CV-02473-CEM-DCI in the United States District Court for the Middle District of Florida, Orlando Division.
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Fiscal Impact:
The plaintiffs in the above-described litigation will pay $125,000 to Brevard County to offset attorneys’ fees and costs incurred in defense of the lawsuit. The settlement payment will be deposited into the Risk Management General Liability Line Cost Center 389620. The County has incurred attorneys’ fees and costs totaling approximately $392,000. Of the remaining $267,000, the County is responsible for the first $100,000 under its self-insured retention insurance policy, and the insurer will reimburse the County for the balance of $167,000.
Dept/Office:
County Attorney’s Office
Requested Action:
Recommendation
Approve the mediated settlement between Brevard County and the plaintiffs and authorize the Chair and County Attorney to sign a settlement agreement, release, and related documents as necessary and appropriate.
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Summary Explanation and Background:
On December 27, 2023, plaintiffs Atlantic Housing Partners L.L.L.P., Canton Construction, LLC, Concord Management, Ltd., and The Venue at Heritage Oaks Partners, Ltd. brought the case styled Atlantic Housing Partners L.L.L.P., et al v. Brevard County, Case No. 6:23-CV-02473-CEM-DCI in the United States District Court for the Middle District of Florida, Orlando Division, asserting federal civil-rights claims against Brevard County.
The plaintiffs intended to develop a 105-unit affordable housing multifamily rental project in West Melbourne and requested that the Board of County Commissioners approve tax exempt private activity bond financing pursuant to the Tax Equity and Fiscal Responsibility Act (TEFRA). After conducting two hearings, the Board denied the request based primarily on concerns from the City of West Melbourne and area residents concerning the suitability of the project for the selected site. The plaintiffs asserted that the denial violated both the federal Fair Housing Act (FHA) and the Florida Fair Housing Act (FFHA). The plaintiffs alleged that they suffered damages totaling $14,423,06 plus attorney’s fees and costs.
The County filed a claim on its public officials’ liability coverage, which is a self-insured retention (SIR) policy. SIR policies contain a specified dollar amount a policyholder must pay out-of-pocket for damages and defense costs before an insurance policy covers a loss. In the applicable County policy, that amount is $100,000. While the insurer tendered a defense and assigned outside counsel, it did so subject to a full and complete reservation of its rights under the coverage agreement and applicable law. The policy has a $3,000,000 per claim liability limit.
The County filed a motion to dismiss the lawsuit, which was denied by the court. The parties then engaged in extensive litigation, including retention of expert witnesses, written discovery, and depositions. The case was scheduled for a jury trial in February 2026.
On January 13, 2026, the court entered an order granting summary judgment in favor of Brevard County, disposing of all claims against the County. The court’s order expressly found that the plaintiffs failed to establish genuine issues of material fact and failed to present sufficient evidence to sustain the asserted claims.
Brevard County is entitled to recover taxable costs of approximately $36,000. Under 42 U.S.C. § 3613(c)(2), a prevailing party in an FHA lawsuit may recover attorneys’ fees and non-taxable costs. Both 42 U.S.C. § 1988 and 42 U.S.C. § 3613 authorize an award of reasonable attorneys’ fees to a prevailing defendant where the plaintiff’s claims are frivolous, objectively unreasonable, or without factual or legal foundation. As the prevailing party, Brevard County sought recovery of its attorneys’ fees (approximately $204,000) and non-taxable costs (approximately $151,000), asserting that the plaintiffs’ claims were frivolous, unreasonable, and without foundation from the outset and certainly once discovery closed.
Before the district court could rule on the County’s motion for attorneys’ fees and non-taxable costs, the plaintiffs filed an appeal in the United States Court of Appeals for the Eleventh Circuit. The parties were ordered to engage in appellate mediation. After hours of mediation on the afternoon of April 14, the parties agreed to settle the case with the plaintiffs paying Brevard County $125,000, dismissing their appeal, and releasing all claims against the County. The settlement is contingent upon approval by the Board of County Commissioners.
The County Attorney, the claims adjuster, and outside counsel for the County agreed that the proposed settlement is reasonable for several reasons. First, the County’s claim for attorney’s fees and non-taxable costs is not guaranteed and hotly contested. The County is only assured of recovering $36,000 in taxable costs, so the settlement agreement is $86,000 greater than the County’s minimum recovery. Second, significant additional fees and costs would be incurred in defending the appeal. Third, there is a small but not negligible chance that the appellate court could disagree with the district court’s reasoning or set aside the summary judgment on technical grounds. If that happened, the case would be sent back to the district court for trial, with its associated expenses. While extremely unlikely, one cannot completely discount the chance that the plaintiffs might then prevail at trial. In that case, the County could be found liable for alleged damages up to $14 million, plus attorneys’ fees and costs. As noted above, the alleged damages far exceed the policy’s $3 million liability limit. Further, because the insurer tendered a defense subject to a reservation of rights, there could be a dispute regarding the applicability of coverage even for the policy limits.
For these reasons, it is recommended that the Board of County Commissioners accept the plaintiffs’ final offer of $125,000 and approve the proposed settlement.
Clerk to the Board Instructions:
Please return a memo reflecting the Board’s action to the County Attorney’s Office.