              Case: 17-15552     Date Filed: 09/20/2018   Page: 1 of 10


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 17-15552
                              Non-Argument Calendar
                            ________________________

                        D.C. Docket No. 4:15-cv-10167-JEM

KEITH COHEN,
CHERI COHEN,

                                           Plaintiffs-Counter Defendants-Appellants,

                                        versus

MONROE COUNTY,
a political subdivision of the State of Florida,

                                              Defendant-Counter Claimant-Appellee.

                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                (September 20, 2018)

Before MARCUS, WILLIAM PRYOR, and FAY, Circuit Judges.

PER CURIAM:

      Appellants Keith and Cheri Cohen (collectively, “the Cohens”) appeal the

district court’s grant of summary judgment in favor of Appellee Monroe County in
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a civil action in which the Cohens raised claims under the federal and Florida Fair

Housing Acts, 42 U.S.C. § 3604(f)(3)(B) (“FHA”) and Fla. Stat. § 760.23(9)(b),

and Monroe County counterclaimed, alleging the Cohens’ violation of a restrictive

covenant. The Cohens claimed that Monroe County failed to accommodate their

disabilities, which rendered them unable to work, when the county denied their

request for a waiver of a deed restriction that limited the Cohens’ desired home to

buyers and occupants who derive 70% of their income from gainful employment in

the county. While this action was pending, the Cohens bought the home.

      The district court held that Monroe County did not violate the FHA or the

Florida Fair Housing Act because the requested accommodation was not

reasonable or necessary to afford the Cohens equal opportunity to use and enjoy a

dwelling.   The court also concluded that the Cohens violated the restrictive

covenant on their purchased property and ordered them to sell the home to a buyer

who met the covenant’s requirements. On appeal, the Cohens argue that: (1) the

district court erred in determining that their requested accommodation was

unreasonable and unnecessary; and (2) the district court’s grant of equitable relief

in favor of Monroe County should be reversed. After careful review, we affirm.

      “We review a district court’s grant of summary judgment de novo, viewing

the record and drawing all factual inferences in a light most favorable to the

nonmoving party.” Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d


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1277, 1284–85 (11th Cir. 2014) (quotation omitted). A court must grant summary

judgment if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(a). We review the district court’s decision to grant equitable relief for abuse of

discretion, underlying questions of law de novo, and findings of fact upon which

the decision to grant equitable relief was made for clear error. Weatherly v. Ala.

State Univ., 728 F.3d 1263, 1269 (11th Cir. 2013).

      First, we are unpersuaded by the Cohens’ claim that the district court erred

in determining that their requested accommodation was unreasonable for purposes

of the FHA. The FHA prohibits discriminating against a person on the basis of a

“handicap,” or a disability, by refusing to make reasonable accommodations when

necessary to afford the person equal opportunity to use and enjoy a dwelling. Fair

Housing Amendments Act of 1988, Pub.L. No. 100–430, § 6, 102 Stat. 1619

(codified at 42 U.S.C. § 3604(f)(3)(B)). The FHA and the Florida Fair Housing

Act are substantively identical, so the same legal analysis applies to each. Loren v.

Sasser, 309 F.3d 1296, 1299 n.9 (11th Cir. 2002).

      A successful failure-to-accommodate claim has four elements. To prevail,

one must prove that (1) he is disabled within the meaning of the FHA, (2) he

requested a reasonable accommodation, (3) the requested accommodation was

necessary to afford him an opportunity to use and enjoy his dwelling, and (4) the


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defendants refused to make the accommodation. Schwarz v. City of Treasure

Island, 544 F.3d 1201, 1218–19 (11th Cir. 2008). The burden of proof is on the

plaintiff. Loren, 309 F.3d at 1302. The parties do not dispute that the Cohens are

disabled or that Monroe County denied their requested accommodation.

      At issue here is whether the Cohens have shown that their proposed

accommodation is reasonable. “Whether a requested accommodation is required

by law is highly fact-specific, requiring case-by-case determination.”          Id.

(quotation omitted). An accommodation is not reasonable if it imposes undue

financial and administrative burdens on the defendant or “requires a fundamental

alteration in the nature of the program.” See Schwarz, 544 F.3d at 1220 (quotation

omitted); see also Sch. Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273, 287 n.17

(1987). “[A] proposed accommodation amounts to a fundamental alteration if it

would eliminate an essential aspect of the relevant activity.” Schwarz, 544 F.3d at

1220 (quotations and citations omitted).

      Under Florida law, the Florida Keys are an “area of critical state concern,”

and have been directed to “[e]stablish a land use management system that protects

the natural environment of the Florida Keys[,] . . . conserves and promotes the

community character of the Florida Keys[, and] . . . promotes orderly and balanced

growth in accordance with the capacity of available and planned public facilities

and services.” Fla. Stat. § 380.0552(2)(a)-(c) (2015). The statutory framework


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also directs that “affordable housing” be provided “in close proximity to places of

employment in the Florida Keys.” Id. § 380.0552(2)(d). Monroe County enacted

§ 130-161 of its Land Development Code, which creates development incentives

and bonuses for developers who record deed restrictions that limit the purchase and

occupancy of certain residential units to individuals who meet specific local

income requirements. In particular, the Monroe County Land Development Code

(“MCLDC”): (1) provides incentives to owners who restrict the use of an

affordable housing dwelling unit designed for employee housing to households that

derive at least 70 percent of their household income from gainful employment in

the county, MCLDC § 130-161(a)(6)(b); and (2) allows up to 20 percent of an

affordable or employee housing project with five dwelling units or more to be

developed as market-rate housing dwelling units, but the use of any market-rate

housing dwelling unit must be restricted for a period of at least 30 years to

households that derive at least 70 percent of their household income from gainful

employment in the county, id. §130-161(a)(8)(a).

      In this case, the Cohens seek to avoid the local-income restrictive covenant -

- as provided by the MCLDC -- arguing that the County failed to grant them a

reasonable accommodation under the FHA and Florida Fair Housing Act through a

waiver of the requirement that purchasers and occupants of the subject property

derive at least 70 percent of their household income from gainful employment in


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the County. Notably, the Cohens’ property is not part of the lower-priced housing

units in their housing development; rather, it is one of the market-rate deed-

restricted dwellings.1 We are unpersuaded.

      As the summary judgment record reveals, there is no genuine dispute of fact

that the Cohens’ requested accommodation is not reasonable and would require a

fundamental alteration in the nature of Monroe County’s local-income program.

As for the purpose of the local-income requirements imposed on market-rate deed-

restricted homes, the County provided a declaration from a County employee

stating that granting the Cohens’ requested accommodation would “defeat the

purpose of the County’s affordable and employee housing plan and would be

contrary to” the express terms of the Florida statute mandating affordable housing

in close proximity to places of employment in the Florida Keys. This makes sense.

The deed-restricted market-rate properties are created and defined within the

section of the County’s Land Development Code entitled, “Affordable and

employee housing.” See MCLDC § 130-161 (2015) (emphasis added). The deed-

restricted market-rate properties share an in-county income requirement identical

to the lower-priced housing, and the only significant difference between market-


1
      The deed restriction on the Cohens’ property reads:

      Each market rate dwelling unit developed on the Market Rate Property is hereby deed
      restricted for a period of thirty (30) years to the use and occupancy, whether by
      ownership or rental, by households that derive at least seventy percent (70%) of their
      household income from gainful employment in Monroe County.
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rate deed-restricted houses and the lower-priced housing is that the former’s price

and occupancy is not constrained based on adjusted gross income.           Compare

MCLDC § 130-161(6) (restricting use “to households that derive at least 70

percent of their household income from gainful employment in the county”), with

MCLDC § 130-161(8) (restricting use “to households that derive at least 70

percent of their household income from gainful employment in the county”).

      In other words, the market-rate deed restrictions share the same purpose as

the lower-priced housing restrictions, but for employees who do not qualify for

affordable and employee housing based on the adjusted gross income limitations --

to ensure a stock of housing in close proximity to places of employment in the

Florida Keys. See Fla. Stat. § 380.0552(d). By designating certain housing for

employees, regardless of income level, the County’s restrictions necessarily make

housing more affordable for all Keys’ employees, consistent with the Florida

statute. If the County were to waive its local-income restrictions on the market-

rate housing, then even less housing would be available for employees in the

Florida Keys, and the available housing would be even less affordable. Because

this kind of waiver “would eliminate an essential aspect of the relevant activity” --

keeping housing rates down for all employees of the Florida Keys -- we conclude

that the accommodation sought by the Cohens would amount to a fundamental

alteration of the program. Schwarz, 544 F.3d at 1220 (quotation omitted). Indeed,


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the Cohens have not argued in their brief that the County regularly allows waivers

for non-employees to live within the local-income communities. See id. at 1222-

25. Thus, the district court did not err in concluding that, as a matter of law on this

summary judgment record, the Cohens did not show that their requested

accommodation was reasonable, and we affirm the district court’s entry of

summary judgment.

      We also find no merit to the Cohen’s claim that the district court abused its

discretion in granting equitable relief in favor of Monroe County. Generally, to

obtain injunctive relief in Florida a party must demonstrate: (1) a clear legal right,

(2) the inadequacy of a remedy at law, and (3) that irreparable injury will occur if

such relief is not granted. Lee Cty., Fla. v. Fort Myers Airways, Inc., 688 So. 2d

389, 390 (Fla. Dist. Ct. App. 1997).          However, “[r]estrictive covenants have

traditionally enjoyed the strong protection afforded property interests by specific

remedies designed to secure enjoyment of the intended [benefit] rather than

compensation designed to substitute for its loss.” Autozone Stores, Inc. v. Ne.

Plaza Venture, LLC, 934 So. 2d 670, 673 (Fla. Dist. Ct. App. 2006) (quotation

omitted). Thus, “[i]njunctive relief is normally available to redress violations of . .

. restrictive covenants [affecting real property] without proof of irreparable injury

or a showing that a judgment for damages would be inadequate.” Id.; Fox v.




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Madsen, 12 So. 3d 1261, 1263 (Fla. Dist. Ct. App. 2009) (“a mandatory injunction

is the proper means of enforcing a restrictive agreement affecting real estate”).

      Moreover, the decision whether to grant equitable relief, and, if granted,

what form it shall take, lies in the discretion of the district court. Castle v.

Sangamo Weston, Inc., 837 F.2d 1550, 1563 (11th Cir. 1988); see also Black

Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1290

(11th Cir. 2015) (“the federal courts possess broad discretion to fashion an

equitable remedy”).

      As we’ve noted, the deed restriction on the Cohens’ property provides that:

“Each market rate dwelling unit developed on the Market Rate Property is hereby

deed restricted for a period of thirty (30) years to the use and occupancy, whether

by ownership or rental, by households that derive at least seventy percent (70%) of

their household income from gainful employment in Monroe County.” While

“[r]estrictive covenants are strictly construed against those who assert the power to

limit the homeowner’s free use of the land,” Leamer v. White, 156 So. 3d 567, 572

(Fla. Dist. Ct. App. 2015) (quotation omitted), the language here is clear: the

covenant prevents any use or occupation of a property, by ownership or rental, by

households who do not derive at least 70% of their income from employment in

Monroe County. Thus, there is no basis for the Cohens’ argument that they should

be allowed to remain owners of the property and should not be compelled to sell to


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a qualified purchaser.   Because the covenant restricts ownership or rental to

Monroe County employees, the Cohens are not allowed to remain as owners while

they rent the property to Monroe County employees.         Indeed, allowing non-

employees like the Cohens to rent property to employees could undermine the

availability and affordability of housing for Monroe County employees -- the very

purpose of the local-income requirement.

      Further, as the district court observed, the Cohens purchased the subject

property knowing that they neither met the income requirement of the property’s

restrictive covenant nor had a waiver from the County. Potentially, any purchaser

could feel justified in violating the restrictive covenants and buying market rate

deed-restricted properties when they do not otherwise meet the income

requirements. Thus, their continued ownership of the property purchase of the

property could fundamentally alter the market-rate deed-restricted housing

program on a grand scale. On this record, we cannot say the district court abused

its discretion in enforcing the restrictive covenant in favor of Monroe County and

ordering the Cohens to sell the home to a buyer who met the covenant’s

requirements.

      AFFIRMED.




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