Houston v. City of Cocoa Affidavit of Eli H. Subin

    IN THE UNITED STATES DISTRICT 
COURT FOR THE MIDDLE DISTRICT 
OF FLORIDA, ORLANDO DIVISION
CASE NO: 89-082-CIV-ORL-19

BEATRICE HOUSTON, et al.
Plaintiffs, 

v .

THE CITY OF COCOA, et al 
Defendants.

/
AFFIDAVIT OF ELI H. SUBIN IN 

OPPOSITION TO THE PLAINTIFFS' MOTION 
FOITaN AWARD OF ATTORNEYS' FEES AND COSTS

STATE OF FLORIDA
COUNTY OF ORANGE

BEFORE ME, the undersigned notary public, personally appeared 
Eli H. Subin, who being first duly sworn, declares under penalty of 
perjury, that the foregoing is true and correct.

INTRODUCTION
My name is Eli H. Subin, and I am making this statement in 

affidavit form at the request of the City of Cocoa, Florida.
The original purpose of my statement was to provide an opinion 

regarding the amount of a reasonable fee for the same services as 
those provided by the plaintiffs' attorneys if the Court should 
determine that they would be entitled to recover their attorneys'

1 I have never had a professional engagement in which I 
represented the City of Cocoa, Florida, or its agencies.



fees in this case.
In consideration of my review of the plaintiffs' motion for an 

award of attorneys' fees and costs, I have expanded the scope of my 
statement to include my opinions that the amount of attorneys' fees 
which they seek is unjustified as a matter of fact, and a court 
award of such fees would be a gross abuse of judicial discretion. 
Furthermore, I find that the plaintiffs seek a court order taxing 
costs which are not lawfully recoverable, and such an order would 
also constitute a gross abuse of the Court's discretion.

SUMMARY OPINION REGARDING 
A REASONABLE ATTORNEYS' FEE 

AND TAXATION OF COSTS
It is my opinion that a reasonable fee for the services of the 

plaintiffs' attorneys would be in a range from $86,800.00 to 
$100,000.00, and the recovery of costs should be limited to the 
clerk's fee for filing of the case.

My opinion regarding attorneys' fees is based upon: (1) my
experience as an attorney and member of the Bar of this Court; (2) 
consideration of the nature and extent of the professional services 
actually provided by the plaintiffs' attorneys; (3) the difficulty 
of the legal and factual issues involved; (4) the skills required 
to achieve the result obtained; (5) customary fees for similar 
services rendered in the Middle District of Florida; (6) the 
contingent nature of the fee; (7) the fact that substantial 
services were rendered by Central Florida Legal Services, by the 
NAACP Legal Defense and Educational Fund, Inc., and by counsel from

2



the private sector performing pro bono publico; (8) the time in 
which the final result was obtained; (9) the final result; (10) the 
experience of the plaintiffs' attorneys; (11) the arguably 
undesirable nature of the case not because it was a civil rights 
case, but because the likelihood of payment for legal services were 
unknown; and (12) award of fees and costs in similar cases.

My opinion regarding the plaintiffs' motion for an award of 
costs is based upon consideration of the facts that the motion is 
improperly documented (or not at all), and it seeks recovery of 
costs not taxable as a matter of law.

BIOGRAPHICAL DATA
I was admitted to The Florida Bar in October 1961. In 

addition to my admission to practice in the courts of the State of 
Florida, I am admitted to practice in the United States Courts of 
Appeals for the Fifth, Seventh, and Eleventh Circuits, and in the 
Supreme Court of the United States, as well as in the United States 
District Courts for the Eastern District of Pennsylvania and 
District of New Jersey (Special Assistant United States Attorney), 
Northern District of Illinois, Southern District of Florida, Middle 
District of Florida, and Northern District of Florida (by motion). 
I have represented parties in cases in all of those courts, and 
have represented two petitioners and one respondent in the Supreme 
Court of the United States in cases wherein petitions were denied. 
I am presently counsel of record for the petitioner in the Supreme 
Court of the United States in T. Harris Young & Associates, Inc. v.

3



Case No. 91-679 (petition forMarquette Electronics, Inc., 
certiorari filed October 24, 1991). A listing of reported
decisions of the mentioned courts in cases in which I have 
participated as counsel for a party of record is attached as 
Exhibit "A."

I have, in addition to the mentioned cases, consulted and been 
of counsel in a number of cases involving alleged discrimination in 
the conditions of employment on account of race, gender, age, or 
national original. These were cases in which the City of Orlando, 
Florida was a party during my tenure as City Attorney, or were 
cases in which my law firm was counsel of record for a party.

During my tenure as City Attorney (1980-1982), I observed and 
had limited participation in the preparation of applications for 
Federal Urban Development Assistance Grants, and participated 
directly in the political resolution of disputes arising from 
either the City's promotion of or failure to promote urban 
redevelopment and neighborhood development programs. Two notable 
such projects were the Expo Center Redevelopment and the Callahan 
Neighborhood Center.

My formal education consists of degrees of B.A. and L.L.B. 
awarded by the University of Pennsylvania and the University of 
Miami in 1957 and 1961 respectively.

My experience in practice as an attorney consists of service 
as a Trial Attorney in the Antitrust Division, United States 
Department of Justice (1962-1963); law clerk to Judge Donald K.

4



Carroll, District Court of Appeal, First District (1963-1964); and 
private practice of law (1964 to date).

I served as City Attorney for the City of Orlando, Florida 
(1980-1982); was a member of the Judicial Nominating Commission for 
the Ninth Judicial Circuit of Florida (1976-1979); was a member of 
the Supreme Court Committee on Lawyer Disciplinary Procedures 
(1977-1978); was a member of the Florida Board of Bar Examiners 
(1983-1987) of which I served as Vice Chairman (1985-1986) and 
Chairman (1986-1987); served as a Referee in the Supreme Court of 
Florida in lawyer disciplinary cases, one of which was the first 
public disciplinary trial conducted by the Integrated Bar. In that 
case, my recommendation became the opinion of the Court. (The 
Florida Bar v. Mason, 334 So.2d 1 (Fla. 1976)); I served as member 
and Chairman of the Grievance Committee for the Ninth Judicial 
Circuit (1971-1972); I served as a Director of the Orange County 
Florida Bar Association; and have served as Chairman and Vice 
Chairman of the Judicial Tenure and Selection Committee; Judicial 
Nominating Commission Committee; Judicial Poll Committee, and 
Special Committee on Court Facilities of The Florida Bar.

I am a member of The American Law Institute of which I serve 
on the Members Consultative Group for the Draft Restatement of the 
Law, The Law Governing Lawyers.

I am a member of the American Judicature Society, the American 
Bar Association, Antitrust Law Section, the Federal Bar 
Association, and the Orange County Bar Association.

5



My practice is now limited to civil trials and appeals.
My rating in the Martindale-Hubbell Law Directory is av.

NATURE AND EXTENT OF SERVICES 
RENDERED - DIFFICULTY OF 

ISSUES - SKILLS - RESULTS OBTAINED
The plaintiffs' motion for an award of fees and the papers 

supporting it do not include a summary grouping of time entries by 
the nature of the activity performed or the service rendered. See 
Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 
1303 ( 11th Cir. 1988). This failure makes a burden of the analysis 
of these attorneys' services which would justify the amount of fee 

claimed.2
Consequently, it is helpful to consider the following factual 

summary which highlights the time within which the dispute was 
resolved after the complaint was filed. Following which I make 
some projections concerning the reasonable times within which a 
skilled attorney could have achieved substantially the same result.

On September 16, 1988, Central Florida Legal Services
submitted its written complaint to the City of Cocoa concerning 
Rezoning Ordinance 7-88, and suggested that it be revised. The

It appears from the supporting affidavits that in excess 
of 1,000 was spent in conference with co-counsel, 387 hours were 
spent in legal research, 249.4 hours were devoted to drafting, 
reviewing, and editing the complaint, 1017.8 hours were devoted to 
fact investigation, 70.3 hours were spent in preparation of the 
application for an award of attorneys' fees, and 157.8 hours were 
spent on matters relating to class certification. It is unclear 
whether the plaintiffs wish to recover for 40 hours spent in 
matters relating to the motion to intervene.

6



ordinance which was adopted in March 1988, became effective in 
September at about the time that Central Florida Legal Services 
requested that it be revised.

Organizations representing the plaintiffs' interests made 
additional complaints to Federal and state agencies. This case was 
initiated in early February, 1989. Settlement discussions began in 
July 1989, and the following month the parties reached an agreement 
in principle for settlement of the case without having taken a 
single deposition. The City of Cocoa approved the settlement 
before the Court denied the City's motion to dismiss the complaint 
(Judith Koons' Deposition, October 11, 1991 at 65-68). The City 
transmitted proposed amendments of its Comprehensive Plan to the 
Florida Department of Community Affairs prior to December 15, 1989, 
and it enacted Ordinance 15-90 amending the Plan to repeal the 
objected-to portions of the zoning ordinance on May 22, 1990.

There is evidence that the plaintiffs' counsel believed in 
August 1989, that this case and the related administrative 
proceeding were "ideal for settlement" (Koons' letter to Bettin 
August 14, 1989). Indeed in September, 1989, the only unresolved 
issues concerned: (1) the plaintiffs' individual damages claims 
which were settled for a total sum of approximately $20,000.00;3

The order certifying the class excluded claims for 
damages which would be determined as needed in the future. The 
plaintiffs' memorandum in support of the Court's preliminary 
approval of the settlement described the $20,000.00 damage award to 
the class representatives as "nominal."

7



and (2) the plaintiffs' entitlement to recover attorneys' fees and 
court costs.

In the parties' joint memorandum seeking the Court's final
approval of the consent decree the argument in favor of approval of
the settlement was (in addition to the judicial criteria for
approval having been met):

litigation would have been lengthy and 
expensive for all concerned, with the ultimate 
substantive and remedial outcomes uncertain.

It is also noted that the settlement agreement specifically
disclaims an admission of liability by the City of Cocoa and the
Redevelopment Authority.

I find from my review of the record including the 
correspondence between counsel that the plaintiffs' contention for 
court awarded attorneys' fees generated more continuing acrimony 
than did the process by which the substantive issues were resolved.

In order to achieve the result which apparently pleased all 
concerned the plaintiffs utilized the services of nine attorneys 
with attendant staff employees. All of these attorneys offer 
evidence of their expertise in the resolution of claims involving 
discrimination in zoning, city planning, and housing on account of 
race as well as in unrelated civil rights issues of gender, age, 
and etc.

Despite their claimed expertise in the relevant federal and 
state law, these nine attorneys required 4418.4 hours for 
preparation and filing a complaint, obtaining class certification,

8



for a related administrative agency proceeding, and for 
negotiating a settlement (in which endeavor the defendants 
cooperated). Four of these attorneys,4 5 a law clerk and a paralegal 
report having spent 211.5 hours in legal research in their field of 
expertise prior to having filed the complaint, and 176.9 hours of 
research post-complaint.6

In my experience a knowledgeable attorney would not spend in 
excess of 200 hours in legal research prior to filing a complaint 
concerning legal precedent in which he believes himself to be 

expert.
It is my opinion in consideration of the clarity of and ease 

of access to the relevant facts, and in consideration of existing 
legal precedent that a qualified attorney would have investigated 
the facts, performed legal research and drafted the same complaint 
in approximately 80 hours. Furthermore, I find no evidence in the 
correspondence that settlement negotiations which began in July 
1989, and which resulted in an agreement in principle by the end of 
the next month (followed by public hearings and documentation) were 
unusually difficult or required an inordinate amount of time. By 
January 17, 1990, plaintiffs' attorney Koons wrote to the Florida

4 It is unclear whether the plaintiffs request compensation 
for the administrative agency proceeding which may not be 
compensable under § 1988.

Attorneys Hair, Dubin, Koons, and Brautigam. Law clerk 
Slye and paralegal Wright report 15.4 pre-filing research hours.

Attorneys Hair, Dubin, Brown, Koons, and Brautigam.
9



Secretary of Community Affairs saying that the entire matter had 
been resolved. Actually releases were not obtained from the 
plaintiffs (in exchange for the $20,000.00 payment) until January 
16, 1991.

It is my opinion that preparation of all of the papers 
relating to the settlement (other than motions and memoranda filed 
in Court) could have been accomplished in approximately 100 hours 
by one experienced attorney representing the plaintiffs and working 
in cooperation with the City's attorney. Furthermore, I believe 
that approximately 100 hours spent in negotiations and in 
attendance at meetings of City Council would have been quite 
adequate for the purpose.

To summarize this non-court time including preparation of the 
complaint:

Time Hours
Complaint 80
Negotiations 100
Drafting 100
We are left to account for the preparation of papers relating

to the class certification hearing, motion to dismiss, notice to
class members, consent decree, motions for court approvals,
supporting memoranda, and attendance at court. It is my opinion

%
that these tasks could have been accomplished by a skilled attorney 
with the assistance of an associate, paralegal, nd staff secretary

10



in approximate total times as follows:

Research and preparation of papers
relating to class certification
Response to motion to dismiss
Preparation of consent decree
(after negotiations)
Joint motions for court approvals
Miscellaneous memoranda in support
of motions
Notices
Attendance at court

SUBTOTAL
This subtotal of 154 hours added to 280 hours for preparation of 
the complaint, negotiations, and drafting of settlement documents 
yields a total of 434 hours without consideration of miscellaneous 
time for conferences and communications with clients, staff and co­

counsel (if any).
Therefore, it is my opinion that a skilled attorney and a 

staff of one associate, and one paralegal would expend from 434 to 
500 hours maximum time in all services relating to the final 
resolution of this case (aside from the intervention). If the 
entire 434 to 500 hours would be valued at an attorney's average 
hourly rate of $200.007 for a skilled attorney having in excess of

The relevant market rate of which the plaintiffs offer 
evidence is $175.00 an hour for Ms. Koons of Central Florida Legal 
Services, Inc. who was among the lead counsel.

Time Hours

50
20

10
10

40
20
4

154

11



20 years actual experience, then a reasonable fee based on hourly
o

units would be from $86,800 to $100,000 without taking into 
consideration the relative difficulty of the issues, or the result 
obtained for the client.

Neither the factual or legal issues proved to be difficult in 
this case as is made evident by the relative ease and speed with 
which the settlement was achieved. Also, the Comprehensive Plan 
including the zoning ordinance, to which the plaintiffs objected 
was left substantially intact but it was enhanced. It is apparent 
that although a benefit was obtained, the same result might have 
been had by skillful negotiation without confrontation at a cost 
far less than $100,000.00, and surely less than the $1,517,330.00, 
of which the plaintiffs' attorneys seek Court approval.

It is my opinion that the result achieved should not be 
evaluated in the light of historic discrimination on account of 
race which the plaintiffs contend was imposed by the City of Cocoa 
from 1940. Rather, one should compare the substance of Ordinance 
7-88 in the form in which it was enacted in March 1988, and the 
amended Comprehensive Plan following negotiations between these 
parties. The consent decree amendments adopted in the Spring of 
1990, are in attachment 3 to Ordinance 15-90. The substantially 
new portions added to the Plan which materially affect these 
plaintiffs are in Policy Statements 3.1.4.5., 3.1.4.6, 3.1.4.13, 
3.2.1.4. It is noted that 3.1.4.13 concerns rehabilitation of 
historic housing.

12



It is notable that Ordinance 7-88 designated three residential 
areas as affected by the intended redevelopment plan, and two of 
these were (according to the City) predominantly non-black. If 
this is true, then it would be erroneous to say that this ordinance 
was prima facie racially motivated. Further, the set-aside of 
$675,000.00 of Block Grant and Redevelopment Agency funds which the 
plaintiffs claim as an accomplishment, was not (based on my 
discussion with the City Attorney) equivalent to the creation of 
new funds but was rather recognition that these funds which were 
already available or anticipated for similar purposes would be 
utilized for the agreed purpose.

In my experience, the amendments of the Comprehensive Plan 
which were made would have been obtained through a thoughtful 
process of negotiation without the need for this lawsuit. Indeed, 
the prompt settlement does not indicate animus on the City's part; 
there is no evidence in the record of ill will regarding the 
substantive issues, and it does not clearly appear that the 
settlement materially altered the parties' legal relationship in a 
manner which Congress sought to promote in 42 USC § 1988. See
Texas Teachers v. Garland School Dist., 489 U.S. ____, 103 L.Ed.2d
866, 876-878 ( 1989) .

This confirms my initial impression that the case may have 
been unnecessary, and in consideration of the result obtained it 
might arguably be appropriate for the parties to bear their own 
fees. In- saying this, I am affected by consideration of the fact

13



that Berle, Kass & Case apparently rendered its services in the 
public interest. Furthermore, I am troubled by the collective 
failure of the plaintiffs' attorneys to itemize in subject 
groupings their expenditures of effort; am troubled by apparent 
inconsistencies, and duplication of efforts revealed by their 
respective reports of time; and by the enormity of their fee 
requests which in the case of the NAACP and Central Florida Legal 
Services look like major portions of annual budgets.

HOURLY RATES - LODESTAR - 
ENHANCEMENT - "MARKET RATE"

The prevailing hourly rate for skilled civil trial lawyers in 
Tampa, Orlando, and Jacksonville who have thirty years experience 
in trying complex cases in Federal and in state courts is from 
$220.00 to $235.00 an hour, and that rate is for attorneys who are 
either partners or owners in firms of a few attorneys, and in firms 
of more than one hundred attorneys.

It is my belief in consideration of the facts that in this 
case an attorney practicing in the Middle District of Florida, and 
having twenty to twenty-five years of experience in the area of 
trials of civil rights cases and of complex civil cases would have 
conducted this prosecution and negotiations for compensation based 
upon an average hourly rate of $200.00.

My conclusion is borne out by the relative ease of the 
settlement, and by the fact that of the plaintiffs' nine attorneys, 
none have been admitted to practice for twenty years, and Judith

14



Koons who was the principal managing attorney assigned to the case 
by Central Florida Legal Services claims an hourly rate of $175.00. 
Her hourly rate applied to 500 hours would be $87,500.00.

The appropriate "market rate" for a lawyer's services is the 
prevailing market rate in the relevant community (where the action 
was brought). Blum v. Stenson, 465 U.S. 886, 79 L.Ed.2d 890, 891 
(1984); Missouri v. Jenkins, 491 U.S. 274, 105 L.Ed.2d 299 (1989).

The plaintiffs' fee application proposes that the hourly rates 
to be awarded attorneys Dubin, Boger, Hair, and Brown be based on 
the market rate in New York City (Dubin Affidavit 10, 18). The 
fee application for attorneys McCarroll and Coplan and for law 
clerk Slye simply ask for approval of their New York City hourly 
rates.

The fee application of Central Florida Legal Services is 
supported by the opinion of Peter H. Barber regarding the market 
rate in the Middle District of Florida. His opinion is that 
$175.00 an hour is a reasonable rate with a lesser amount for an 
associate attorney and paralegal.

The opinion of Robert J. Shapiro regarding hourly rates for 
attorneys Dubin, Boger, Hair, McCarroll, Brown, and Coplan is not 
evidence of the market rate for attorneys of their respective 
experience at the Bar, and does not take into consideration all of 
the factors which affect the appropriate market rate for these 
people in this case. For example, I do not know of any competent 
attorney who was admitted to practice in 1982, and regularly

15



appears in trials in Federal and State courts in the Middle 
District of Florida, whose hourly rate is $220.00, as is Ms. 
Hair's.

If Ms. Koons’ hourly rate of $175.00 (or my suggested rate of 
$200.00) is accepted as the market rate, then it should be the rate 
for all legal services for which a fee may be awarded. Utilization 
of a unitary hourly rate would offset differing opinions regarding 
the total compensable time, and the differing attorney, clerk, and 
paralegal rates claimed for these nine attorneys and staff. It 
would also make the New York City attorneys' rates equivalent to 
that of the lead attorney for Central Florida Legal Services.

Furthermore, it is my opinion that this case is clearly not 
one in which the fee award (if there is one) should be enhanced. 
This is because an "exceptional" result was not obtained, and there 
was no "real risk of not prevailing to some extent" (albeit by a 
settlement). See Pennsylvania v. Delaware Valley Citizens' 
Council, 483 U.S. 711, 97 L.Ed;2d 585, 601 ( 1987) (Delaware Valley 
Citizens' Council II). Indeed, there is nothing in the record of 
this suit which would mark it as unusually difficult or as one 
which would not have reached substantially the same conclusion if 
prosecuted by another attorney. The amendment of the Comprehensive 
Plan which was quickly and easily obtained through negotiations 
marks this as a case which was not at all exceptional in a sense 
which would justify fee enhancement.

I am aware that the 11th Circuit has approved the enhancement
16



of fees to compensate civil rights attorneys for risk associated 
with contingency fees, the plaintiffs' difficulty in obtaining 
counsel, and for delayed payment. Davis v. Locke, 936 F.2d 1209, 
1215 (11th Cir. 1991), but see Martin v. University of South 
Alabama, 911 F.2d 604, 610-612 (11th Cir. 1990) which more closely 
follows Delaware Valley II. There is no evidence in this record, 
however, that these plaintiffs experienced difficulty in obtaining 

counsel.
General statements of Robert Shapiro regarding his experience 

in civil rights litigation since 1981, and the difficulty in 
obtaining counsel to represent civil rights litigants does not 
address the experience of these plaintiffs in obtaining counsel, 
and is somewhat at odds with my own and my firm's experience. I 
have found a distinct change in the attitude of the Bar regarding 
representation of civil rights plaintiffs from being generally 
negative in 1963, to one of widespread acceptance at this time.

My law firm has since 1964, represented minorities in class 
and individual actions complaining of discrimination in conditions 
of employment, defamation and in general civil disputes. We have 
also participated in providing counsel to a rural farm workers 
program in Orange County. Within the past- year, I have 
corresponded with a prominent local attorney who is a Past 
President of The Florida Bar concerning recruitment of several law 
firms in this community who expressed willingness to represent

17



minorities in complex civil cases.
It is my impression that the plaintiffs' fee affidavits speak 

in general terms without reference to what has actually occurred in 
this case. It appears that these plaintiffs have not carried the 
burden of proof regarding what their fee arrangement was, regarding 
actual difficulty in obtaining counsel in the relevant market 
without a contingency multiplier (despite Mr. Shapiro's and Mr. 
Smith's opinions), and regarding legal risks in this case which 
would justify fee enhancement. As mentioned, if the risk was 
substantial then why was the case so quickly and easily resolved by 
settlement?

THE PLAINTIFF ASKS FOR TAXATION OF 
COSTS WHICH MAY NOT BE LAWFULLY TAXED —

THE COURT HAS DISCRETION TO DISALLOW COSTS
The plaintiffs’ motion and supporting memorandum for an award 

of attorneys' fees and costs is a measure of their relative 
experience in federal practice. They make no reference to the 
Federal Judicial Code relating to taxation of costs, they ask for 
taxation of costs which are not recoverable under the Code (28 USC 
§1920), they do not properly itemize costs, and give no 
justification for the costs which they ask to be taxed against the 
City of Cocoa.8 See Crawford Fitting Co. v. J.T. Gibbons, Inc., 
482 U.S. 437, 442, 96 L.Ed.2d 385, 391 (1987).

9 Travel, food, lodging for the plaintiffs' attorneys are 
not taxable, telephone and mail expense is not taxable, federal 
express, mileage and tolls, Westlaw and FAX are not taxable, and 
the fees of expert witnesses are not taxable as costs under 42 USC 
§ 1988 and 3613(c), West Virginia University Hospitals, Inc. v.
Casey, 499 U.S. ______, 113 L.Ed.2d 68 ( 1991) (expert fee award in
civil rights case may not exceed statutory cap of $30.00 a day).

18



FURTHER AFFIANT SAYETH NAUGHT.

Sworn to and subscribed before 
me this 13th day of November, 1991.

f"Notary Public U- Statesk of Florida
My commission expires:

____ Linda Young______________
Printed Name of Notary Public

Eli H. Subi

19



Federal Cases
Aqoranos v. United States

409 F.2d 833 (5th Cir. 1969) cert, denied 
396 U.S. 824, 90 S.Ct. 67, 24 L.Ed.2d 75

Peas v. PACCAR, Inc.
775 F.2d 1498 (11th Cir. 1985), cert, denied,
475 U.S. 1129, 106 S.Ct. 1658, 90 L.Ed.2d 201

Ballard v. El Dorado Tire Company 
512 F.2d 901 (5th Cir. 1975)

State of Florida v. Weinberger
492 F.2d 488 (5th Cir. 1974)

Johnson's Professional Nursing Home v. Weinberger 
490 F.2d 841 (5th Cir. 1974)

Hodgson v. J.M. Fields. Inc.
335 F.Supp. 731 (M.D. Fla. 1971), modified.

Brennan v. J.M. Fields, Inc.
488 F.2d 443 (5th Cir. 1973), cert, denied,
419 U.S. 881, 95 S.Ct. 146,' 42 L.Ed.2d 121

United States v. Prevatt
414 F.2d 239 (5th Cir. 1969), opinion supplemented by 
446 F.2d 905

Jewel Companies, Inc, v. F.T.C.
432 F.2d 1155 (8th Cir. 1970), appeal after remand 
479 F.2d 1323

NLRB v. Curtis Mfg. Co.
421 F.2d 1335 (5th Cir. 1970)

DeMet v. Harralson
399 F.2d 35 (5th Cir. 1968)

Meadors v. United States
376 F.2d 998 (5th Cir. 1967)

Ferland v. Prance Groves of Florida. Inc.
377 F.Supp 690 (M.D. Fla. 1974)

State of Florida v. Richardson
355 F.Supp. 1027 (N.D. Fla. 1973)

Coral Gables Convalescent Home. Inc, v. Richardson 
340 F.Supp. 646 (S.D.Fla. 1972)

In re: Sun World Broadcasters. Inc.
5 B.R. 719 (Bkrtcy. M.D. Fla. 1980)

EXHI3IT "A"



State Court Cases
Kousaleos v. Gilbane Building Company

532 So.2d 1138 (Fla. 2fid DCA 1988)
Bank of Central Florida 

470 So.2d 742 (Fla..Zj_Dept, of Banking and Finance
1st DCA 1985) ‘

National_Union Fire Insurance Co. of Pittsburgh
Central Warehouse Center ~ " — t

464 So.2d 677 (Fla. 5th DCA 1985)
Pa. v. Gulf

McCoy Restaurants. Inc, v. City of Orlando 
465 So.2d 546 (Fla. 5th DCA 1985)

Duffy v. Realty Growth Investors
466 So.2d 257 (Fla. 5th DCA 1985)

Jaimot v. Media Leasing Corp.
457 So.2d 529 (Fla. 5th DCA 1984)

National Shirt Shops. Inc, v. His & Hern Inc 
451 So.2d 892 (Fla. 5th DCA 1984) ’ ~

Cohen v. Hardman
416 So.2d 498 (Fla. 5th DCA 1982)

Christian Broadcasting Network. Inc, y. Starr 
401 So.2d 1152 (Fla. 5th DCA 1981)

City of Orlando v. Cullom
400 So.2d 513 (Fla. 5th DCA 1981), reh. denied 
411 So.2d 381 (Fla. 1981) "
Communications, Inc, v. Rogers 

369 So.2d 1041 (Fla. 4th DCA 1979)
Christian Broadcasting Network. Inc, v. Turner 
?orP •-» 368 So.2d 1345 (Fla. 4th DCA 1979) Communications

M & M Development Co. y. Meadows
368 So.2d 390 (Fla. 4th DCA 1979)

Silicone Coating Systems v. Volusia Jai ALai 
362 So.2d 480 (Fla. 1st DCA 1978)

Churruca v. Miami Jai Alai. Inc.
353 So.2d 547 (Fla. 1977)

Christian_Broadcasting Network. Inc, y. Sun Worid
Inc•. 353 So.2d 560 (Fla. 4th DCA 1977) Broadcasters.



Amsler v. American Home Assurance Co.
348 So.2d 68 (Fla. 4th DCA 1977), cert, denied 
358 So.2d 128 (Fla. 1978)

In re: Wylie's Estate
342 So.2d 996 (Fla 4th DCA 1977)

Golden Loaf Bakery, Inc, v, Charles W. Rex Const. Co.
311 So.2d 390 (Fla. 4th DCA 1975), cert, discharaed 
334 So.2d 585 (Fla. 1976) ------’

Fulton Distributing Co. of Florida v. First National Bank 
of Eau Gallie, 301 So.2d 116 (Fla. 4th DCA 1974), cert denied 

311 So.2d 671 (Fla. 1975) ---~ ' aeniect>
Mason v. Avdovan

299 So.2d 603 (Fla. 4th DCA 1974)
Lustier v. Feinberq

285 So.2d 631 (Fla. 1st DCA 1973)
Florida—Welding <& Erection Service. Inc, v. American 
Mutual Ins. Co. of Boston. 285 So.2d 386 (Fla. 1973)
Reed v. Fink

275 So.2d 280 (Fla. 1st DCA 1973)
Lustig v. Feinberg

257 So.2d 299 (Fla. 1st DCA 1972)

Investment Coro._of South Florida v. Florida Thoroughbred
Breeders Ass'n, 256 So.2d 227 (Fla. 3rd DCA 1972), cert, denied 

261 So.2d 844 (Fla. 1972) ----------- ’
Turner v. Trade-Mor. Inc.

252 So.2d 383 (Fla. 4th DCA 1971)
West Flagler Associates. Ltd, v. Division 
Wagering. 251 So.2d 856 (Fla. 1971) of Pari-Mutuel

—Flagler_Associates, Ltd, v. 3oard of Business
Regulation. 251 So.2d 355 (Fla. 1971) ‘
S.tate—ex—rel_Inv. Corp. of South Florida v. Board of
Business Regulation. 227 So.2d.674.(Fla. 1969)

Associates, Ltd, v. Board of Busines 
238 So. 2d 6/7 (Fla. 1st DCA 1970) , on rehearincr 

2d 369 (Fla. 1970) -------------
s Regulation 
241 So.

Solutec Coro, v. Young & Lawrence Associates 
243 So.2d 605 (Fla. 4th DCA 1971)



Charles Sales Corp. v. Hodcyskin
239 So.2d 106 (Fla. 4th DCA 1970), cert, denied.
240 So.2d 814 (Fla. 1970), cert, denied. 401 U.S. 956 
91 S.Ct. 979, 28 L.Ed.2d 240

Nantell v. Lim-Wick Const. Co.
228 So.2d 634 (Fla. 4th DCA 1969)

Raphael v. earner
194 So.2d 298 (Fla. 4th DCA 1967)

Strickland v. Frey
187 So.2d 84 (Fla. 4th DCA 1966)

Akel v. Doolev
185 So.2d 491 (Fla. 2nd DCA 1966)

In re: Christian's Adoption
184 So.2d 657 (Fla. 4th DCA 1966)

Nichols v. State ex rel Bolon 
177 So.2d 467 (Fla. 1965)



IN THE UNITED STATES DISTRICT 
COURT FOR THE MIDDLE DISTRICT 
OF FLORIDA
ORLANDO DIVISION
Civil Action No. 89-082-Civ-Orl-19 
Florida Bar No. 286141

BEATRICE HOUSTON, et al., 
Plaintiffs,

THE CITY OF COCOA, et al., 
Defendants.

AFFIDAVIT OF BONNIE S. SATTERFIELD IN 
OPPOSITION TO PLAINTIFFS' APPLICATION FOR ATTORNEYS 

FEES. COSTS. AND EXPENSES
STATE OF FLORIDA )

)
COUNTY OF BROWARD )

BEFORE ME, the below-named authority, personally appeared 
BONNIE S. SATTERFIELD, ESQ., who, first being duly sworn, 
deposes and says:

Introduction
My name is Bonnie S. Satterfield, and I am providing this 

affidavit at the request of the City of Cocoa, Florida. 
Neither I nor any attorney of my firm has provided legal 
services . in any form to the City of Cocoa, Florida, or the 
other Defendants in this action.

I was originally retained in this matter to review the 
Plaintiffs' Application for Attorneys Fees, Costs, and Expenses 
("Application"), and to provide the Court with my independent

1
p/469BSS/2



opinion regarding a reasonable award of attorneys fees and 
costs to the Plaintiffs in this matter. Having spent 
considerable time in review and analysis of the Plaintiffs' 
Application and the supporting materials submitted, it is my 
considered opinion that the range and scope of the 
representation for which attorneys fees are sought by 
Plaintiffs in this matter far exceed the boundaries of rational 
billing judgment which would necessarily be exercised by a 
lawyer in the private sector.

In addition to the hours expended being egregiously 
excessive, the Plaintiffs have not produced satisfactory 
evidence the requested rates are in line with prevailing market 
rates in the Middle District of Florida. It is my opinion that 
a Court award of even the lodestar amount claimed, minus any 
enhancement factor, would be an abuse of judicial discretion. 
The Plaintiffs' Application also seeks an. award of costs which 
are not within the purview of taxable costs and, therefore, the 
award of costs and expenses sought would clearly constitute an 
abuse of this Court's discretion.

Summary of Opinion
In my opinion serious questions exist with respect to 

Plaintiffs' satisfaction of the substantive requirements for 
declaration of "prevailing party" status in this matter. 
Having reviewed the Complaint and additional Court papers, the 
Comprehensive Plan both before and after amendments to said

2
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Plan pursuant to the Consent Decree, and other relevant 
documents in this matter, I remain unconvinced that Plaintiffs 
have satisfied their burden of demonstrating Defendants herein 
engaged in unconstitutional behavior and Defendants' actions in 
satisfaction of the Consent Decree in this case were required 
by law. See, Williams v. Leatherburv. 672 F.2d 549 at 551 (5th 
Cir. 1982). Absent Plaintiffs' satisfaction of this burden, 
they do not qualify as prevailing parties and are, 
consequently, not entitled to any award of attorneys fees and 
costs taxed against Defendants.

If Plaintiffs are considered to have met their burden of 
demonstrating the unconstitutionality of the Defendants' 
actions, a reasonable fee for the services of the Plaintiffs' 
attorneys in this litigation would, in my opinion, be in the 
range of $75,000.00 to $87,500.00, and an award of costs would 
be limited to the filing fees in this matter.

I base my opinion regarding Plaintiffs' Application for 
Attorneys Fees and Costs on:

(1) My experience as a civil litigation attorney and as a 
billing partner in Ruden, Barnett, McClosky, Smith, 
Schuster & Russell, P.A./

(2) My consideration of the nature and extent of the 
professional services actually provided by the 
Plaintiffs' attorneys;

(3) The difficulty of the legal and factual issues 
involved;

(4) The skills required to achieve the results obtained;
(5) The customary fees for similar services rendered in 

the Middle District of Florida;

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F/4698SS/2



(6) The contingent nature of the fee;
(7) The fact that substantial services were rendered by 

Central Florida Legal Services, by the NAACP Legal 
Defense and Educational Fund, Inc., and by attorneys 
from the law firm of Berle, Kass & Case providing pro 
bono services;

(8) The time in which the final result was obtained;
(9) The final result;
(10) The experience and skill of the Plaintiffs' attorneys;
(11) The arguably undesirable nature of the case; and
(12) Awards of fees and costs in similar cases.
In my opinion, the Plaintiffs' Application for Attorneys 

Fees and Costs is in many instances unsubstantiated, and in 
other instances insufficiently supported by evidence.
Additionally, the Plaintiffs' Application seeks recovery of 
costs not taxable under the applicable Federal Judicial Code 
sections governing an award of costs in this case.

Personal Experience
I was admitted to practice in the Courts of Florida in 

November of 1979. In addition to being a member of the Florida 
Bar and a member of the Bar of the United States District 
Courts for the Northern, Middle, and Southern Districts of 
Florida, I am a member of the trial bar of the United States 
District Court of the Southern District of Florida. I am also 
a member of the Bars of the United States Courts of Appeal for 
the Fifth, Eleventh, and Federal Circuits. I have represented 
parties in cases in all of these courts, although at the

4
F/4698SS/2



present time my practice is primarily in the Circuit Court for 
the Seventeenth Judicial Circuit, in and for Broward County, 
Florida, and in the United States District Court for the 
Southern District of Florida.

I served as a law clerk to the Honorable William H. 
Stafford, Chief Judge in the United States District Court for 
the Northern District of Florida, in Tallahassee, Florida, from 
July of 1979 through July of 1931. During that tenure, I 
researched and drafted the Court's decisions in numerous civil 
rights cases, a large percentage of which involved 
discrimination in terms and conditions of employment based on 
race, religion, color, gender, or national origin.

From August 1981 through early 1983, I was associated with 
the law firm of Patterson & Traynham in Tallahassee, Florida, 
which firm's practice consisted primarily of civil rights 
litigation in the United States District Court for the Northern 
District of Florida. As an associate at Patterson & Traynham, 
I. served as co-counsel for plaintiffs in numerous employment 
discrimination cases based on race, color, and national origin 
claims. Since my association with Ruden, Barnett, McClosky, 
Smith, Schuster & Russell, P.A., in March of 1983, I have 
served as lead counsel for defendants in various cases alleging 
discrimination on the bases of race, gender, and age. I have 
also served as lead counsel in at least two cases based on 
alleged discrimination in violation of the Fair Housing Act.

5
F/i698SS/2



My educational background consists of a Bachelor of Arts 
Degree, with Honors, from MacMurray College in Jacksonville, 
Illinois in 1965 and a Master of Fine Arts Degree from the 
University of Texas at Austin in May of 1969. I received the 
Juris Doctor, with Honors, from Florida State University 
College of Law in March of 1979.

My employment experience includes one year, from July of 
197 6 through August of 1977, as an EEO Specialist with the 
Equal Employment Opportunity Office of the Florida Department 

of Commerce.
My experience in practice as a civil litigator consists of 

the above-mentioned association with Patterson & Traynham, as 
well as association with my present law firm from March of 1983 
through December of 1985. From January of 1986 to date, I have 
been and presently am a member of the law firm. I am a member 
of the Broward County Bar Association and Co-chairman of the 
Trial Lawyers Section of the Broward County Bar Association. I 
am a member of the American Bar Association and the Broward 
County Women Lawyers Association, the Florida Association for 
Women Lawyers, and the National Association of Women Lawyers, 
as well as the Association of Trial Lawyers of America. I 
currently hold the office of Vice President of the Broward 
County Trial Lawyers Association and in January will become 
President of the Broward County Trial Lawyers Association. I

6
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am also a member of the Federal Bar Association. My rating in 
the Martindale-Hubbell Law Directory is "bv".

The Nature and Extent of Services Rendered 
The Plaintiffs have not provided, either in their 

Application or in the supporting materials, an analysis or
grouping of their time entries by the nature of the services
provided or the activities performed. It is my considered 
opinion counsel's time entries might reasonably have been 
separated into at least four categories, three of which are not 
appropriately charged to this litigation. Such separation of 
time entries would have allowed the analysis which I believe is 
required by Norman v. Housing Authority of the City of 
Montgomery. 836 F.2d 1292 (11th Cir. 1988). The Plaintiffs
should have separated the services provided: (i) in pursuit of
the Housing, and Urban Development ("HUD”) objections; (ii) in 
furtherance of the administrative complaint (National
Environmental Protection Agency ("NEPA")); (iii) in prosecution 
of the instant lawsuit; and (iv) in "political" efforts on 
behalf of Plaintiffs. Had the Plaintiffs' time entries been 
categorized or sorted in this manner, the amount of time
attributed to the instant lawsuit might have borne some 
rational relationship to services provided. Absent such 
separation of time entries, the task of analyzing the various 
attorneys' time entries to reach a conclusion regarding 
reasonable hours expended in this matter is overwhelming.

7
F/4698SS/2



Accordingly, I was forced to analyze the pleadings and 
Court papers prepared, the Consent Decree, and the amendments 
to the Comprehensive Plan which resulted from the settlement of 
this lawsuit.

As an example of the problems created by Plaintiffs' 
counsels' failure to separate time entries by the nature of the 
services provided and their failure to exercise billing 
judgment, I note the time entries of Jon Dubin, Penda Hair, and 
Judith Koons, all of which involve numerous entries prior to 
mid-December in 1988, at which time the HUD objections were 
served. Indeed, Judith .Koons' time entries include some 
twenty-two (22) pages of entries prior to the service of the 
HUD objections. Furthermore, Jon Dubin, Judith Koons, and 
Penda Hair include a combined total of two hundred fifty (250) 
hours drafting and reviewing the Complaint in this matter. It 
appears clear such duplication and redundancy of efforts is 
unreasonable.

I find only one time entry, for two and one half (2 1/2) 
hours on April 8, 1989, to draft a Motion for Extension of Time 
and a Memorandum of Law and a cover letter, by John Boger, to 
be arguably included in services provided to the lawsuit, and 
no hours of William H. Abbuehl to be reasonably included. The 
time entries of the attorneys furnishing the bulk of services 
to Plaintiffs include numerous examples of entries for 
activities which might have been undertaken by Legal Assistants 
or Secretaries or which are otherwise clearly unreasonable or

8
F/469BSS/2



excessive. For example, see .Jon Dubin's entries on May 16, 
1988, and May 17, 1988 on page 1 of his time entries,o and Penda
Hair's entries of January 29, 1989 through February 1, 1989.

Having thus been forced to abandon my attempt to analyze 
and back out of counsels' time records the hours which might 
reasonably have been expended in the instant matter, I have 
been forced to return to estimating the time which might 
reasonably have been incurred by a reasonably skilled attorney 
having achieved substantially the same benefit for his or her 
client.

It is my opinion if Plaintiffs qualify for an award of 
attorneys fees in this matter, the best available method for 
determining a reasonable award is for this Court to review the 
Complaint of February, 1989, the Motion for Class Certification 
and Memorandum in support of said motion, the Plaintiffs' 
Memoranda in Opposition to Defendants' Motions to Dismiss and 
to Strike, the Plaintiffs' Memorandum of Law in Support of 
Preliminary Approval of Settlement, and the Consent Decree 
entered in this matter.

All of Plaintiffs' nine (9) counsel set forth claims of 
their expertise in the litigation and resolution of 
discrimination claims in zoning, land use, and housing, in 
addition to unrelated civil rights issues. Despite this 
claimed skill and experience in relevant litigation, these nine 
(9) attorneys claim almost four hundred (400) hours in legal 
research, approximately two hundred fifty (250) hours in

9
F/469BSS/2



preparation of the Complaint, more than one thousand (1,000) 
hours in fact investigation, and approximately one thousand 
(1,000) hours in conferences with co-counsel. In my opinion, 
4,418.3 hours is clearly excessive for preparation and filing 
of the Complaint, obtaining class certification, and 
participating in negotiation and documentary implementation of 
settlement.

I believe a skilled and qualified supervising attorney with 
appropriately skilled associates and competent legal assistants 
could have performed the factual investigation necessary, the 
necessary legal research, and prepared a similar complaint in 
this matter in approximately one hundred (100) hours. I 
believe the settlement negotiations might also have been 
reasonably accomplished with one hundred (100) hours of effort 
on Plaintiffs' behalf, and an additional one hundred (100) 
hours might have been required to draft the implementing 
settlement documentation for which Plaintiffs were 
responsible. Even with the generous allowance of an additional 
two hundred (200) hours of effort for other properly chargeable 
required duties and tasks in this matter, I believe a maximum 
total of five hundred (500) hours for all of the necessary 
legal services on Plaintiffs' behalf is not unreasonable.

Since Plaintiffs prepared and served their objections to 
HUD approximately two months prior to the filing of the instant 
lawsuit, and resolution of this dispute was reached in a 
conference mediated by HUD in August of 1989, some five to six

10
F/4698SS/2



months after the filing of this lawsuit, it appears the lawsuit 
itself may not have been necessary to reach the result claimed 
to have been obtained by virtue of the litigation. The 
objections to HUD and HUD's mediation of settlement between the 
parties may have provided Plaintiffs with the identical result 
which they claim to be the result of the litigation.

In my experience, skilled legal practitioners in this 
substantive area have access to numerous prior pleadings, 
memoranda of law, and other materials comprising a data bank on 
which they can draw for preparation of subsequent civil rights 
pleadings and memoranda of law. Certainly, one would expect 
staff counsel of the NAACP Legal Defense and Education Fund to 
have such resources at their disposal. Additionally, the 
environmental and historic preservation claims, which were 
perhaps the only somewhat novel claims asserted by Plaintiffs, 
were allegedly the product of skilled land use attorneys who 
would, in like manner, be expected to have the resources of 
prior pleadings and legal memoranda at their disposal. The 
factual and legal issues presented by this case were neither 
extremely difficult nor demanding. The Comprehensive Plan of 
the City of Cocoa appears to have only been slightly amended or 
enhanced only slightly as a result of the Consent Decree, and 
in my mind a serious question remains whether the prosecution 
and negotiation of the administrative complaint to HUD might

11
F/469BSS/2



have obtained the same result which is claimed to have been 
obtained as a result of this lawsuit.

Hourly Rate, Lodestar. Enhancement, and Market Rates
In determining a reasonable hourly rate for the attorney 

services provided on Plaintiffs' behalf in this matter, I have 
difficulty accepting the claims of Plaintiffs' counsel with 
regard to hourly rates. For example, I find the rates claimed 
by attorneys Dubin, Boger, Hair, Brown, McCarroll, and Coplan 
to be their standard New York or Washington, D.C. rates, 
supported only by general affidavits which reference reasonable 
rates in the City of New York without specificity as to the 
skills or experience of these individual attorneys. I find the 
suggested hourly rate of One Hundred Seventy-five Dollars 
($175.00) per hour for Judith Koons to be somewhat high, with 
reference to her fifteen (15) years of experience which 
includes the handling of no relevant cases in the substantive 
areas encompassed by Plaintiffs' Complaint in this action. 
Attorneys Dubin and Hair appear to have each had some 
experience with at least one relevant prior case, although Mr. 
Dubin's relevant experience may be limited to a case which was 
filed after the instant lawsuit.

My familiarity with the prevailing hourly rate for skilled 
civil trial lawyers in the Middle District is admittedly 
limited to my experience in associating with such lawyers in 
representation of various clients of mine with matters in the

12
F/4 6 9 BSS/Z



Middle District or in obtaining counsel in the Middle District 
for my clients or clients of my law firm with matters in the 
Middle District. It has been my experience that attorneys of 
the experience level of Plaintiffs' primary counsel in this 
matter, i.e., Koons, Dubin and Hair, can be engaged for an
hourly rate of approximately One Hundred Fifty Dollars
($150.00) per hour. Since Plaintiffs have failed to seek out 
"close cohorts" to provide this Court with a reasonable measure 
of the prevailing market rate, I am forced to abide by my
personal knowledge and the results of my personal experience 
with counsel in the Middle District. (See, Norman at 1300.)

Applying my suggested reasonable hourly rate to the 
projected reasonable hours expended in Plaintiffs' behalf in 
this matter, the resultant lodestar amount would be 
Seventy-five Thousand Dollars ($75,000.00). In like manner, if 
this Court would choose to apply the One Hundred Seventy-five 
Dollars ($175.00) an hour rate, which I would consider the 
maximum allowable reasonable rate for the legal services
furnished Plaintiffs herein, the resultant lodestar amount for 
the expenditure of five hundred (500) hours in Plaintiffs' 
behalf would be Eighty-seven Thousand Five Hundred Dollars
($87,500.00). For this reason, in my opinion a reasonable fee 
award in this action would be in the range of Seventy-five
Thousand Dollars ($75,000.00) to Eighty-seven Thousand Five
Hundred Dollars ($37,500.00), if Plaintiffs qualify for an
award.

13
F/&69BSS/2



It is my opinion this case clearly does not qualify for an 
enhanced fee award. The results obtained were, in my opinion, 
neither exceptional nor is there any evidence in the record to 
indicate the quality of the representation provided to 
Plaintiffs was in any way superior to that which would 
reasonably be expected in light of the hourly rates claimed. 
Norman at 1302, citing Blum v. Stenson. 465 U.S. 886 at 899. 
Despite Plaintiffs' reference to the "contingent nature of the 
litigation", there is no evidence the fee arrangement was 
contingent in this case. At no time were Plaintiffs' counsel 
at risk of providing legal services without compensation. 
Koons, Abbeuhl, and Brautigan, were salaried employees of 
Central Florida Legal Services, Inc. Dubin, Boger, Hair, and 
Brown were salaried employees of the NAACP Legal Defense and 
Education Fund, Inc., and McCarroll and Coplan were employees 
of Berle, Kass & Case, which firm was performing pro bono 
services. Central Florida Legal Services and the NAACP Legal 
Defense and Education Fund, Inc., do not depend upon a fee 
award in this case for their next year's funding.

Furthermore, although Plaintiffs assert in their 
Application and supporting affidavits enhancement is necessary 
to assure the availability of counsel in this matter, they have 
not, in my opinion, made the requisite showing such enhancement 
was necessary to assure counsel in this case. In short, there 
has been no showing sufficient to justify any enhancement of my 
suggested lodestar amount. The 100% enhancement requested by

14
F/4698 SS/2



Plaintiffs is wholly inappropriate. See, Norman at 1302 and 
Delaware Valiev Citizens' Council I and II. as cited therein.

28 U.S.C. §1920 governs costs which are properly taxable in 
this matter. The Plaintiffs7 Application is insufficient 
because the costs claimed are not sufficiently itemized or 
described and are not appropriately taxable against 
Defendants. In my opinion, the only identifiable taxable cost 
is the filing fee of One Hundred Twenty Dollars ($120.00).

Costs Should Be Disallowed

FURTHER AFFIANT SAYETH NA

Sworn to and subscribed 
before me this day 
of November, 1991.

w . -official notary seal*My commission expires: Jacquelyn j aArirv
NT COMM. EXP. 1/24/94

3 -

15
F/A698SS/2



IN THE UNITED STATES 
FOR THE MIDDLE DISTRICT OF FLORIDA 

ORLANDO DIVISION

BEATRICE HOUSTON, et al,
Plaintiffs,

vs. Case No. 89-082-CIV-ORL-19

THE CITY OF COCOA, et al,
Defendants.

________________________________/

AFFIDAVIT OF CHARLES W. McCOOL
STATE OF FLORIDA )
COUNTY OF VOLUSIA )

BEFORE ME, the undersigned authority duly authorized to 
administer oaths and take acknowledgments, personally appeared 
CHARLES W. McCOOL, known to me, who, after being duly sworn, 
deposed and said as follows:

1. Affiant's name is CHARLES W. McCOOL, and Affiant has 
personal knowledge of the facts set forth in this Affidavit.

2. Affiant was the City Manager of the Defendant CITY OF
COCOA from September 12, 1988 until October 5, 1990. Affiant
presently serves as City Manager of the City of Daytona Beach 
Shores, Florida. At the time of this Affidavit, Affiant has been 
involved in municipal government for thirteen (13) years, and has 
served as Administrative Assistant to the Mayor, Orange City, 
Florida; City Manager, Holly Hill, Florida; City Manager, New Port 
Richey, Florida; City Manager, Cocoa, Florida; and as City Manager,



Daytona Beach Shores, Florida.
3. Shortly after assuming the position of City Manager of the 

CITY OF COCOA, Affiant inquired of Plaintiff's Lead Counsel, Judith 
E. Koons, as to whether it would be possible to discuss the 
Plaintiffs' claims, in an effort to arrive at an amicable 
resolution of such claims. Affiant in fact had one (1) meeting 
with Ms. Koons, which lasted for approximately 30 minutes; in that 
meeting, Ms. Koons advised Affiant that she was meeting with me 
"only as a courtesy", that there was "nothing I could do" to 
facilitate a settlement, and that it was "too late" to discuss 
settlement. Affiant thereafter sought another meeting with Ms. 
Koons prior to suit being filed, again with the hope of engaging in 
good faith substantive discussions of the parties differences, 
which request was rebuffed. As a result of the events related 
herein, Affiant was unable to engage in any meaningful settlement 
discussions with representatives of the Plaintiffs until after this 
action was commenced.

4. The discussions which led to the ultimate resolution of 
the parties dispute began as a result of the intercession of the 
Department of Housing and Urban Development. In July 1989, 
representatives of HUD, one member of whose delegation was Mr. 
Morris Gray, came to Cocoa from Atlanta, Georgia, to meet 
separately with the parties. While Affiant was always hopeful.that 
an amicable solution could be found, Affiant nevertheless believed 
settlement was extremely unlikely, based upon the positions 
previously taken and attitudes previously expressed by Plaintiffs' 
representatives.



5. Affiant was not a party to the discussions the 
representatives of HUD had with Ms. Koons during their afore­
mentioned July 1989 trip to Cocoa. During the meeting Affiant had 
with the representatives of HUD, comments of said representatives 
made it clear to Affiant that said representatives had met with Ms. 
Koons prior to meeting with Affiant and the other City 
representatives. The City's delegation at its meeting with HUD 
included the Affiant; then—Community Improvement Director Rochelle 
Lawandales; Assistant City Attorney Bradly Roger Bettin; and Cocoa 
Redevelopment Agency attorney Harold Bistline.

6. Said discussions began with a discussion of Ordinance 7-88 
and its effect. The City's delegation pointed out to the 
representatives of HUD that: the Ordinance zoned the overwhelming 
majority of the Plaintiffs' neighborhood RU-2-25, which is a 
residential zoning; that the RU-2-25 zoning category did not open 
the Plaintiffs' property up to commercial development; and that 
Transferable Development Rights (TDR's), which apparently the 
Plaintiffs believed would lead to the destruction of their 
neighborhood, were exportable only, i.e., TDR's could not be used 
to enhance development in the RU-2-25 classification.

7. At the time these discussions were being undertaken, there 
were three (3) areas of RU-2-25 zoning in the downtown area: the 
Plaintiffs' neighborhood, which was predominantly black; an area in 
the southeastern portion of the City of Cocoa along the Indian 
River, which was predominantly white1; and an area in the

1 This area was being considered for a marina, which was a 
permitted accessory use in the RU-2-25 classification. Plaintiffs 
neighborhood was not on any waterfront.



northeastern portion of Cocoa "downtown" area, which again was 
predominantly white.

8. The representatives of HUD, upon hearing our description 
of how Ordinance 7-88 worked, expressed some surprise, and 
indicated that the Plaintiffs' representatives did not understand 
the Ordinance to operate as we had described it. After some time 
spent discussing the Ordinance, the conversation turned to the 
issue of settlement.

9. The HUD representatives purpose, as I understood it, was 
to determine what "the City would be wiling to do to get this case 
settled", in order to ascertain whether it might indeedbe possible 
to resolve the differences between the parties.

10. As City Manager, it was my responsibility, with available 
staff, to provide a response to the inquiries of HUD's 
representatives. My response was made without any knowledge 
whatsoever as to how Plaintiffs' representatives had answered the 
same question; at the time I responded to HUD's inquiries, I 
understood the Plaintiffs position to be that the City would have 
to expend "multi-million" dollars in order to satisfy their claims. 
Put another way, I had no idea what settlement proposals, if any, 
had been made by the Plaintiffs to the HUD representatives.

11. At the close of these discussions, the HUD 
representatives advised, much to my surprise, that "we were not 
that far apart", and suggested that a face-to-face session be 
arranged.

12. The rough outline of the proposal I made to HUD's 
representatives, with the aid of the City's other representatives



at the meeting, are detailed in the July 25, 1989 letter of Bradly 
Roger Bettin, Esquire attached hereto and incorporated herein by 
reference as Exhibit "A”, which letter was written after our 
conference with the representatives of HUD and at my direction. My 
goal in advancing this proposal was to advise HUD of what I was 
willing to recommend in order to resolve this dispute. It was my 
hope that the HUD representatives would see the City's position as 
reasonable, and would endeavor to facilitate a settlement.

13. I, along with other representatives of the City, its 
legal counsel, the Redevelopment Agency's counsel, met with 
representatives of the Plaintiffs (which included Ms. Koons, Mr. 
Jon Dubin, and Mr. Karl Coplan) and representatives of HUD on 
August 31, 1989. Said discussions eventually led to the 
preparation of an "Agreement in Principle", which was submitted to 
the City Attorney's Office along with Ms. Koons' letter dated 
September 28, 1989, copies of which are attached as Exhibit "B".

14. The City's response to the "Agreement in Principle" is 
contained in Exhibit "C" attached hereto, which is the October 30, 
1989 letter of Bradly Roger Bettin, Esquire. Said Exhibit 
represents the City's position, and which was sent at my direction. 
Said response led to the First Revised Agreement in Principle, a 
copy of which is attached as Exhibit "D".

15. In discussing funding of the settlement by the City 
and/or the Cocoa Redevelopment Agency, my approach was to determine 
what funds the City and Agency were expecting would be available 
for such purposes in general before making any proposal to 
Plaintiffs. The proposal ultimately adopted, based upon our



projections, did not involve any increase in taxation for the 
residents of Cocoa; did not involve any change in any budget of an 
unrelated department of the City, i.e., "Peter was not robbed to 
pay Paul"; nor did it represent any increase in the budget of any 
department of the City. The funds to be expended by the City were 
based upon expected receipts from the CDBG program; the funds to be 
expended by the Redevelopment Agency were in line with that 
Agency's expected receipts.

16. Prior to the negotiations initiated by HUD, and 
especially in light of Affiant's contacts with Ms. Koons prior to 
this action being filed, as were previously described in paragraph 
3 of this Affidavit, Affiant believed settlement with the 
Plaintiffs would be extremely unlikely. Affiant's belief was based 

upon the following:
a) Prior to these discussions, Plaintiffs' 

representatives had always taken the position that the Plaintiffs 
case was a "multi-million dollar lawsuit", the settlement of which 
would require a "multi—million dollar" expenditure. Shortly after 
Affiant became City Manager it became clear to Affiant that there 
was no interest amongst Cocoa City Council and Redevelopment Agency 
members to fund a "multi-million dollar" settlement.

b) Affiant, as City Manager, was present at meetings of 
the City Council, and witnessed numerous exchanges between 
Plaintiffs' representatives and City Council members, both on 
issues related to this suit and on other issues. Plaintiffs' 
representatives routinely approached all such interactions in an 
argumentative, belligerent, condescending and threatening manner;



no e-ffort was made to by Plaintiffs' representatives to seek or 
even suggest accommodation or compromise in a conciliatory manner. 
From my observation of the dynamics of the situation, my experience 
in municipal government, my experience with and knowledge of the 
various City Council members of the City of Cocoa and Redevelopment 
Agency members, and based upon the statements made by the various 
parties, it became apparent to me that personal animosities had 
developed between Council/Redevelopment Agency Members and 
representatives of the Plaintiffs which unnecessarily impeded, if 
not poisoned, any calm, dispassionate discussion of the parties 
differences. Although Affiant was not City Manager when these 
parties disputes began, such animosities appeared, from Affiant's 
observations, to have their genesis in the conduct of Plaintiffs' 
representatives.

17. The Affiant would gladly have recommended the settlement 
actually adopted without the filing of a lawsuit, had such an 
opportunity been presented by the Plaintiffs. The settlement was 
recommended by Affiant not because the Affiant perceived the 
Plaintiffs' position to be meritorious, but because Affiant 
believed it would resolve a divisive issue in the City; because the 
cost of resolving said divisive issue was, under the circumstances, 
insignificant, especially in light of the damage the dispute 
continuing would do to the City? because the settlement would avoid 
further expense in the defense of Plaintiffs' action; because the 
settlement would bring an end to the inconvenience of being a party 
in contested federal court litigation; and because its resolution 
would put to rest the claims asserted and would promote harmony



within the City.
FURTHER AFFIANT SAYETH NOT.

SWORN TO and 
November, 1991.

subscribed before me on this o  i day of

NOTARY
My Commission Expires

^ Nofary Pullic, Sfafs of FlorUrf ~~ 
Wy Commission Expires June 23, J995't Itvw Îojf l ou) • kuufcuK4 ins.



La w  O ffices

Amari, Theriac, Roberts & Runyons
Attorneys and Counselors at Law

A  P artnership of Individuals and  
Professional Associations

RICHARD S. AMARI, P.A.
JAMES S. THERIAC P.A.

CHARLESJ. ROBERTS. P.A.
J. RODNEY RUNYONS. P.A.
MITCHELLS. GOLDMAN. P.A.

KOHN BENNETT 
BRADLY ROGER BETTIN 

KEVIN P. MARKEY

July 25, 1989

PLEASE REPLY TO: B  MARINER SQUARE 
SUITE 302

96 WILLARD STREET 
COCOA. FLORIDA 32922 

TELEPHONE (407) 639-1320 
FAX (407) 639-6690

□  400 W. COCOA BEACH CAUSEWAY 
COCOA BEACH. FLORIDA 32931 

TELEPHONE (407) 799-0802

Ms. Judith Koons
Central Florida Legal Services
1149 Lake Drive
Suite 101
Cocoa, FL 32922

RE: Civil Rights Suit & HUD Complaint

Dear Ms. Koons:

This letter is an effort to summarize both sides recent conversations 
with representatives of the Department of Housing and Urban 
Development regarding the referenced matters. It sounds like real 
progress was made toward resolving the differences between the 
parties, so much so that face to face discussions may have some 
chance of resulting in a comprehensive settlement.

I have been told we have "an agreement in principle1'. I am not sure 
exactly what that means, since nothing which was discussed with 
HUD has been presented to or approved by the City Council. I do 
believe we have an agreement regarding the basic framework of a 
settlement, and I also believe that a settlement true to that 
framework would be in the best interests and win the support of all 
the parties. Obviously, the authority that Mr. McCool and I have is to 
negotiate, to see whether some agreement can be reached, subject to 
our respective clients approval, and then to present that agreement 
to he City Council to see whether the Council will authorize entering 
into the Agreement.

l , '•1, • - m v v x



What I propose to do is set forth what I understand is our agreement 
as to the direction we are going in these settlement discussions. 
Where there are differences, I will note them; where there are areas 
of concern to the City, I will advise you of them, and I hope you will 
reciprocate. My thought is that if we are aware of the concerns of 
the other side, between now and when we meet, both sides can give 
some thought as to how to meet the other side's concerns without 
surrendering the good available from settlement.

With the preliminaries out of the way, this is where I understand we 
stand at the present time:

I. Ordinance 7-88: The city is committed to some modification of
Ordinance 7-88. The City has proposed the following as possible 
modifications:

•1. Modification of the provisions of the RU-2-25 classification 
to make clear the following:

A. the classification is residential only; commercial uses 
are not permitted;

B. Transferable Development Rights can be accumulated 
for work done in the classification, but they are available for export 
only, i.e., TDR's cannot be applied to development within RU-2-25.

2. Modification of the TDR provisions, as they apply to the 
"Core area", in one of three ways:

A. Create a bonus system, so that work in the core 
directed toward the creation or rehabilitation of low/moderate 
income housing in the Core will accumulate more TDR’s;

B. Modify TDR's as to the Core so that TDR's can only be 
accumulated for work directed toward the creation or rehabilitation 
of low/moderate income housing in the Core.

C. If your clients wished, the Core could "opt out" from 
Performance Standards Bonuses and TDR’s entirely - no PSB's could 
be used for development in the Core, and no TDR's could be 
accumulated for export from the Core.



Note: both provisions A. & B. are negotiable - if thought
necessary, the City is willing to consider limiting TDK's in 
the Core  to low *to m o d e ra te  incom e single  family
re s id en t ia l  cons t ruc t ion .

II. Historic Preservation Issues: The City is ready to do
whatever facilitates consideration of any property within the Core 
for inclusion on the Master Site File and/or the National Register. It 
is my understanding that a Study has recently been completed of the 
Core area; whether that study would be an acceptable first step in 
this regard should be discussed. Of course, you realize that these
discussions cannot bind the City to any open-ended expenditure of 
funds. The City is, however, willing to discuss specific projects.

III. Discrimination: The City will not admit that it has in any
way, shape or form violated any law or the rights of any member of 
the Class.

IV. Dismissals of all complaints: The Federal lawsuit presently
pending in the Middle District of Florida will be dismissed with 
prejudice; the complaint with the Department of Housing and Urban 
Development will be withdrawn.

V. Attorneys Fees and Costs: The City is unwilling to pay any
attorneys fees or costs because, as part of this Agreement, the City 
will not be admitting it committed any illegal or unlawful act.

VI. Rehabilitation programs: The City is willing to explore any
and all available avenues for the rehabilitation of the Core area, 
including further discussions with Habitat for Humanity or any other 
organization which could be of assistance.

VII. Code Enforcement: The City will enforce its building and
other codes within the Core Area as to junkyards, garages and all 
other structures.

VIII. HUD Requests: Apparently the Department of Housing and
Urban Development is asking the City to make a commitment to 
comply with Title VI, Section 109, and Title VIII; that relocation of 
Core Area families and businesses (if any) will occur in accordance



with the terms of the Redevelopment Plan's relocation plan, or in 
accordance with the Uniform Relocation Act, whichever is applicable; 
that the City will provide reports to HUD regarding its rehabilitation 
activities in the Redevelopment Area; and that the City commit itself 
to comply with Fair Housing Laws. While all of these terms need to 
be "fleshed out", in general, the City agrees that these requests are 
reasonable in principle.

The following areas are matters which still need some work:

I. Definition of the Core Area: The City understands the Core to
consist of the area presently zoned RU-2-25. From what we could 
see of the map you provided the representatives from HUD, your 
clients do not join in this definition. Obviously, to get anywhere, we 
will have to define the Core Area.

II. Changing the RU-2-25 zoning to RU-2-10 for the Core
Area: The City does not oppose this proposal in principle, although
the City would prefer not to change the zoning because it is 
consistent with the present uses in the area. The City's concern is for 
property owners within the Core Area whose property would become 
non-conforming because of such a change, especially as it regards 
those property owners whom you do not represent. If some 
accommodation can be reached which protects all current uses, the 
City would be willing to agree to such a change. One alternative 
which might be worth considering, due to its simplicity, would be 
creation of a new classification whose density would be somewhere 
between 10 units/acre and 25 units/acre, if such a thing would 
protect your clients interests, yet leave all existing uses conforming.

III. Inclusion of additional property within the area
receiving the Core zoning: As the City understands it, you wish
additional property fronting Florida Avenue between Factory Street 
and Poinsett Street included within the Core Area, with all the 
zoning, etc. changes we will be discussing. There are also two other 
smaller parcels to the North which your clients wish included in the 
Core Area. To the extent that current owners of those properties are 
conforming, are not represented by you, and do not wish these 
changes, the City would have a problem with such a change unless 
some provision is made to protect the rights of those land owners. In



this regard, you should be advised that simply "grandfathering" 
these properties will probably not solve the problem.

IV. Attorneys Fees and Costs: The City understands that you
wish it to pay your clients attorneys fees and costs. In a settlement 
posture, the City has real problems with that: first, because a
settlement does not result in a "prevailing party"; second, because 
the City paying such fees and costs sends the message that the City is 
"admitting guilt", which is contrary to an agreement that no finding 
of any discrimination would be made. Frankly, this is the issue 
which could prevent a settlement from being reached, and the City 
hopes your Clients would reconsider. Neither side can agree to allow 
the other to "rub its nose in it": the City views paying your clients
fees and costs in those terms.

It is our understanding that you would like to delay until sometime 
in August face-to-face discussions of these proposals. The City has 
no objection to that; in the meantime, however, if you have any 
thoughts as to how we might resolve the remaining issues, or if 
anything I have written evidences a misunderstanding of your 
position, please advise.

The City looks forward to hearing from you.

Very truly yours,

Bradly Roger Bettin



CENTRAL FLORIDA LEGAL SERV.OES, INC.
Rockledge Plaza, Suite F 

1255 South Florida Avenue 
Rockledge, Florida 32955 

(407)536-3515 TDD: (407) 631-0272

W ILL IA M  H. A B 8 U EH L  
Executive Director

BREVARD -SEM INOLE-VOLUSIA-FLAGLER-PUTNAM -ST. JO H N S

September 28, 1989

Bradly Roger Bettin 
Assistant City Attorney 
City of Cocoa
96 Willard Street, Suite 302 
Cocoa, Florida 32922
RE: Core Area Agreement in Principle
Dear Brad:

I have enclosed for you the Agreement in Principle resolving 
the two federal proceedings brought by my clients. I believe the 
Agreement fairly reflects the understanding reached by the 
representatives of the parties on August 31st. In the drafting 
process, three issues surfaced which we found advisable to 
address in the Agreement:

1. Neighborhood Improvement Plan - New Construction
Program: On August 31st, we discussed the possibility of seeking
the construction of a community center in the neighborhood by a 
CDC with a HUD special purpose grant. The enthusiasm shown by my 
clients for such a center leads me to believe that my client 
group would be willing to see some of the funds which were 
intended for housing rehabilitation to be employed for the center 
should the HUD application be denied. This concept is set forth 
in item IV.2.b. on page 4 of the Agreement.

2. Consistency Clause: In our discussion regarding
the Comprehensive Plan, it was agreed that the Future Land Use 
map would be revised to depict the low/medium density residential 
land use of the neighborhood. Upon reflection and in light of 
our recent experience with the Comprehensive Plan, it became 
apparent to me that the map should also reflect the area's 
historic resources and the Plan should reflect the housing 
improvement goals. This concept is set forth in item VI on pages 
4 and 5 of the Agreement.

TO  P R O V IO E  C IV IL  L E G A L  A S S IS T A N C E  TO  P E R S O N S  W H O  A R E  W IT H O U T  
A D E Q U A T E  M EA N S  TO  E M P L O Y  O T H E R  C O U N S E L

E x f - i ^ r S ^ r  U Q :‘



Bradly Roger Bettin 
September 28, 1989 
Page 2

3. Future Assurances: Assurances originally- 
submitted by HUD were drafted in advance of our session during 
which there was considerable give-and-take on the substantive 
assurance of the Agreement relating to involuntary displacement 
and rezonings initiated by the City and by property owners. As a 
result of the agreement on that substantive assurance, HUD has 
approved slight modifications of future assurances necessary for 
that agency. Those assurances as modified are set forth in item 
VII.4. on page 5 of the Agreement.

In drafting the Agreement, our effort was to describe in 
conceptual terms the outline of the understanding reached by 
representatives of the parties. It is anticipated that greater 
detail would be provided in the Stipulation drafted after 
ratification of the Agreement by our clients.

Please contact me to discuss your assessment of the 
Agreement. Following consultation with our clients and with HUD, 
we may then be able to proceed to ratification.

It is my sincere hope that this Agreement will be approved 
by the parties so that the City and my clients may step forward 
into a new era of cooperation.

JK/sm
Enclosure
cc: Harold Bistline

Charles McCool 
Yvette Boykin 
Named Plaintiffs 
Administrative Objectors 
Jon Dubin 
Karl Coplan 
Bob Weisberg

Very truly yours,

Judith E. Koons 
Managing Attorney



AGREEMENT IN PRINCIPLE

I. PREAMBLE
In the interest of settling the claims raised in Houston v. 

City of Cocoa. (89-82-CIV-ORL-19, United States District Court, 
Middle District of Florida) and administrative objections to the 
release and use of funds provided under the Housing & Community 
Development Act of 197 4 pending with the U.S. Department of 
Housing & Urban Development, the Plaintiffs (the Plaintiff class 
and the administrative objectors) , the Defendants (the City of 
Cocoa and Cocoa Redevelopment Agency) and, for the purpose of 
resolving the administrative objections, the U.S. Department of 
Housing & Urban Development, have entered into the agreement set 
forth below. This agreement has been reached after extensive 
arms-length negotiations between representatives for the parties 
culminating in a full afternoon negotiation session at Cocoa City 
Hall on August 31, 1989, at which the representatives reached 
this agreement in principle, subject to ratification by the 
parties.
II. NON-ADMISSION OF LIABILITY

Nothing herein shall be construed as an admission of 
liability by the City of Cocoa or the Cocoa Redevelopment Agency. 
Defendants maintain that the claims and objections asserted 
against them are without merit, but consider it desirable to 
settle these actions in the manner and upon the terms and 
conditions hereinafter set forth to avoid further expense, 
inconvenience and the distraction of burdensome litigation, and 
to finally put to rest the claims asserted in these actions.
III. ZONING

1. The Core Redevelopment Area (herein "CRA") shall be 
rezoned RU-2-10 (low-medium density SF/MF residential) with the 
following modifications of boundaries:

a. The western fringes of the CRA fronting U.S. 
Highway 1 shall remain zoned CP (Commercial Parkway) except that 
the boundaries of the area zoned CP shall be modified so that 
existing residential uses shall remain in the area to be rezoned 
RU-2-10. Only vacant lots fronting U.S. 1 shall remain in the 
redrawn CP district. These new boundaries are reflected in the 
attached Map of the CRA.

b. The northern and eastern fringes of the CRA 
fronting State Road 520 and Florida Avenue, respectively, shall 
remain zoned CC (Core Commercial) except that the boundaries 
shall be modified so that existing residential uses shall remain

1



in the area to be rezoned RU-2-10. Only vacant lots fronting 
S.R. 520 or Florida Avenue shall be included in the redrawn CC 
District. (See Map).

2. The Cocoa Zoning Ordinance shall be amended in the 
following manner:

a. The RU-2-10 zoning classification shall be 
modified as follows:

(i) Multifamily residential dwellings containing 
more than four units in existence at the adoption of this 
amendment shall be added to principal uses in the RU-2-10 
district;

(ii) The specific uses of land and structures
existing as of March 8, 1988, which were permitted uses in the CW 
(Commercial Wholesale) district shall be principal uses in the 
RU-2-10 district. This specific CW use may be converted to other 
uses as follows:

(A) Such specific use may be converted to
two other CW uses: (1) warehousing and wholesaling in completely
enclosed structures; or (2) service and repair establishments 
limited to drycleaning and laundry plants, business services, 
printing plants) welding shops, and light assembly/manufacturing.

(B) Any CW use referenced in (ii) or (ii)(A)
above may be converted to: (1) any use permitted in the CC
district under Section 18(a)(1)-(12) as of the date of the
adoption of this amendment; or (2) any permitted residential use 
in the RU-2-10 district.

(C) The conversion of a CW use referenced in
(11) or (ii)(A) above to a CC use under (B)(1) above terminates 
such specific CW use and the right to convert to other specified 
CW uses. The conversion of such CW use to a RU-2-10 use 
referenced in (B) (2) above terminates such specific CW use and 
the right of such use to convert to a CC use under (B)(1).

(iii) The specific uses existing in the CC 
district as of the date of the adoption of this amendment and 
permitted in the CC district under Section 18(a)(1)-(12) or 
converted to such a CC use as provided under (ii)(3)(1) above are 
principle uses in the RU-2-10 district. This specific CC use may 
be converted as follows:

(A) Any such CC use may be converted to any 
other use permitted in the CC district under Section 18(a)(1)-
(12) or to any residential use permitted in the RU-2-10 district.

(B) The conversion of a CC use referenced in
2



(A) above to a residentia-l RU-2-10 use terminates such specific 
CC use and the right to convert to any other CC use.

b. The CC classification shall be amended to provide 
that the buffer requirements applicable to adjacent residential 
development be applied to adjacent residential districts.

c. The non-conformities section of the zoning 
ordinance pertaining to non-conforming lots of record (ART. X, 
Sec. 3) shall be amended to permit the rebuilding of single­
family homes in existence on the date of this amendment even if 
the lots do not meet the applicable yard or setback requirements.

3. The RU-2-10 classification shall be amended to include 
Transferable Development Rights (TDRs) to promote the development 
of homes affordable to low-income households in accordance with 
the New Construction Program described below at Section IV, 
paragraph 2. a. The TDRs will permit the transfer of certain 
development rights obtained in the RU-2-10 district to the 
Central Business District (CBD).
IV. NEIGHBORHOOD IMPROVEMENT PLAN

1. Housing Rehabilitation Plan
a. The City shall make available $675,000 from CDBG, 

redevelopment agency funds or other funds for housing 
rehabilitation for members of the Plaintiff class who are low 
income homeowners eligible for such funds. Up to $675,000 shall 
be expended for housing rehabilitation for eligible homeowners in 
the CRA. These funds shall be provided over a five-year period 
commencing after the effective date of this agreement.

b. The City shall make continued application to HUD 
for rental rehabilitation funds. The City shall make affirmative 
effotts -to - advertise, promote, and target the use of rental 
rehabilitation funds for priority use in the CRA. The City shall 
also apply for Section 8 certificates and vouchers and make 
affirmative efforts to promote the use of Section 8 and voucher 
subsidies in conjunction with rental rehabilitation to ensure the 
continued affordability of those rental units to members of the 
Plaintiff class who are low-income renters.

2. New Construction Program
a. The goal of this program is the eventual 

development of the approximately 30 vacant lots in the CRA to 30 
homes for low income households. The parties shall endeavor to 
locate a non-profit community development corporation (such as 
Habitat for Humanity) which will agree to construct the homes. 
The same or an additional non-profit CDC shall administer a 
Housing Trust Fund (''Fund") . The Fund shall rechannel the

3



proceeds from the sale of the homes and from the sale of TDRs 
generated from the development of such homes to purchase 
additional vacant lots in the CRA and construct additional homes. 
The City agrees to assist this program by donating a least three 
city-owned lots in the CRA to the Fund. The Fund shall screen 
households for eligibility in the program and shall sell 
completed homes to eligible households as such homes become 
available. Eligible households shall have incomes at or below 
50% of the SMSA median family income adjusted for household size. 
Mortgage payments shall not exceed 30% of a household's adjusted

O

gross income.
b. The City agrees to make application to HUD for a 

special purpose grant pursuant to 24 C.F.R. §570.410 for a 
Neighborhood Community Center in the CRA. In the event such 
application is approved, the City shall donate the third city- 
owned vacant lot in the CRA to the Fund for this purpose. The 
Fund shall locate a non-profit CDC to construct and administer 
the Center. In the event the application is denied, this lot may 
either be donated to the Fund for another home under paragraph
2.a. above, or, at Plaintiffs' request, remain available for a 
community center, in which case, funds allocated for housing 
rehabilitation under paragraph l.a. above may be employed to 
defray the costs of the Center.
V. HISTORIC PRESERVATION PLAN

1. The City agrees to nominate and seek the placement of 
structures in the CRA in existence since 194 0 on the Florida 
Master Site File.

2. The City agrees to declare a historic district covering 
certain portions of Magnolia Street in the CRA as identified in 
the attached Map. The City shall work together with the Central 
Brevard Branch of the N.A.A.C.P. and Save Our Neighborhood to 
nominate the Magnolia Street Historic District and eligible 
structures in the CRA to the U. S. Department of Interior's 
National Register of Historic Properties.

3. The City agrees to nominate properties under paragraphs 
1 and 2 above only with the consent of the owners of such 
structures.
VI. CONSISTENCY CLAUSE

The City agrees to revise the Cocoa Comprehensive Plan to 
render it consistent with this agreement. Such revisions shall 
comply with proper planning principles and shall include revision 
of the Future Land Use Map of the Cocoa Comprehensive Plan to 
denote the low/medium density residential land use of the CRA and 
to reflect the historic resources of the CRA. The Comprehensive 
Plan shall also be revised to reflect the goals of housing and

4



neighborhood improvement set forth in this Agreement.
VII. FUTURE ASSURANCES
— 1. The City agrees not to initiate a rezoning of the CRA 
or take any other action in the CRA which has the purpose or 
effect of involuntarily displacing current or future members of 
the Plaintiff class. In the event of a rezoning initiated by the 
request of a property owner, the City agrees to give due weight 
to preserving the low/medium density residential and historic 
character of the CRA in acting on the rezoning request.

2. In rezonings initiated by property owners, the City 
agrees to provide individual mailed notice to all property owners 
and residents in the CRA living within 500 feet of property 
considered for rezoning, together with all other notice required 
under applicable laws. In any city-initiated rezoning involving 
any property in the CRA, the City shall provide individual mailed 
notice to all residents and property owners which notice shall 
refer to and explain the terms of the Consent Decree, together 
with all other notice required under law.

3. The City agrees to enforce all ordinances requiring the 
. removal or regulation of junk yards or unenclosed storage areas 
' in the CRA and shall take action to remove or correct conditions

that pose hazards to CRA residents or that substantially 
undermine the quality of the residential environment.

4. The City affirms its commitment to continue to comply 
with Title VI of the Civil Rights Act of 1964, Title VIII of the 
Fair Housing Act of 1968, the Housing and Community Development 
Act of 1974, the Uniform Relocation Act, and all relevant 
amendments to these laws and regulations promulgated thereunder. 
The City will provide an annual report to the U. S. Department of 
Housing and Urban Development, Fair Housing and Equal Opportunity 
Office, 75 Spring Street, Richard B. Russell Bldg., Atlanta, GA. 
30303 of the housing and rental rehabilitation funds expended by 
the City overall and in the CRA. These reports shall also 
include all efforts by the City to develop innovative ways of 
revitalizing the CRA through housing rehabilitation and new 
construction. The City will provide special notice to the 
residents of the CRA of its efforts to revitalize the area 
through its rehabilitation and other housing programs.
VIII. DISPOSITION OF COMPLAINTS

The parties .shall enter into a Stipulation for a Consent 
Decree disposing of the federal lawsuit and administrative 
objections as follows:

a. The Consent Decree shall remain and be fully 
enforceable in federal court by all parties, except that HUD

5



shall only have authority to enforce Section VII, paragraph 4 of 
the Agreement and may enforce this clause only through available 
administrative remedies.

b. Plaintiffs' damages claims will be dismissed 
without prejudice.

c. The parties expressly reserve the right to apply 
for attorneys' fees and costs or to oppose such applications.

d. All of the Plaintiffs' other claims and 
administrative objections shall be withdrawn.
IX. EFFECTIVE DATE

This Agreement shall become effective after final approval 
by the Court of the Consent Decree and upon the City Council's 
passage of an ordinance or ordinances necessary to effectuate its 
provisions. In the event that all ordinances necessary to 
effectuate the Consent Decree are not enacted within 60 days 
after the Court's final approval, this Agreement and the Consent 
Decree shall be null and void.

THE CITY OF COCOA PLAINTIFFS

BY:___________________________  BY:__
Dated:______  Dated:

THE COCOA REDEVELOPMENT AGENCY ADMINISTRATIVE OBJECTORS

BY:___________________________  BY:_____________________
Dated:________________________  Dated:__________________

U.S. DEPARTMENT OF HOUSING & URBAN DEVELOPMENT

BY:_________________________________
Dated:

6



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La w  O f fic e s

Amari, Theriac, Roberts & Runyons, P.A.
Attorneys and Counselors at Law

RICHARDS. AMARI 
JAMES S. THERIAC. Ill 

CHARLESJ. ROBERTS. P.A.
J. RODNEY RUNYONS 

MITCHELLS. GOLDMAN. P.A 
KOHN BENNETT 

BRADLY ROGER BETT1N 
KEVIN P. MARKEY 

GREGORY J. DONOGHUE

October 30, 1989

Judith E. Koons, Esq.
Central Florida Legal Services, Inc.
1255 South Florida Avenue 
Rockledge, Florida 32955

Dear Judy:

As I have told you, Mr. McCool, Mrs. Lawandales and I had an 
opportunity to review the Agreement in Principle in detail on 
October 16, 1989. Before proceeding further, I want to commend 
you and your co-counsel on the fine job you did reducing a wide 
ranging, free-wheeling oral agreement to written form. From 
experience I know how difficult the task you faced is.

As is always the case, however, once the oral discussions appear on 
paper, some fine-tuning is necessary. What follows is merely 
proposed language; naturally, if you come up with a better way to 
say it, we will be happy to listen. We believe these amendments are 
minor; we hope you will share our opinion after reviewing them.

A. Section II, Paragraph 1.2. - last sentence. These new
boundaries are generally reflected in the attached Map of the CRA.

B. Section III, Paragraph 1 - add "c". The exact boundary
lines of the CRA shall be determined based upon identification of lot 
lines between the property in the CRA and adjoining property 
outside the CRA. All properties outside the CRA shall retain their
present zoning.

C. Section III, Paragraph 2.a.(ii)(A): - Insert "permitted"
between "CW" and "uses" (second line).

___ _. i I x—i i /
E x  ^

MARINER SQUARE 
SUITE 302

96 WILLARD STREET 
COCOA. FLORIDA 32922 

TELEPHONE (407) 639-1320 
TELECOPIER (407) 639-6690



D. Section III, Paragraph 2.a.(ii)(C) - delete "such specific"
(5th line) and insert "all", so it reads "above terminates all CW use...".

E. Section III, Paragraph 2.a.(iii)(B) - delete "such specific CC 
use" to end and insert "all CC use."

F. Section III, Paragraph 2.a. - add subsection (iv) - No
property owner in the CRA shall lose their right to continue the
existing use of said property except by the voluntary abandonment 
of said existing use. For the terms of this paragraph, "voluntary
abandonment" shall require the knowing and intentional conversion 
of such property from its current use to a more restrictive use, i.e., 
from CW to CC or RU-2-10; from CC to RU-2-10.

G. Section III, Paragraph 3 - last sentence - permit TDR's to
be transferred in accordance with Ordinance 7-88, rather than
limiting it to transfer to CBD only.

H. Section IV, Paragraph l.a.

1) First sentence should read "up to $675,000" in first line, 
since the goal is to accomplish a task, not to spend money.

2) Last sentence add comma at end, then "assuming such
funds are available from sources other than the City's General Fund".

I. Section IV, Paragraph l.b. - The City is not an eligible
agency for Section 8 certificates and vouchers; the Housing Authority 
is. The City can support their applications, etc. but that is all it really 
can do.

J. Section IV, Paragraph 2.a.: The first sentence creates
some discomfort, because it creates the impression that agg ress ive  
action (which some could read as condemnation, etc.) is
contemplated. Perhaps the paragraph could start as follows: "The
City agrees to support a new construction program designed to
construct single family residences in the CRA for low income families. 
The program shall not be a City budget program unless affirmatively 
established as such by the Council.

Later there is a statement about the City donating "at least 
three" lots, while in paragraph 2.b., it talks of donating "the third lot"



if certain contingencies are met. There is an appearance of 
inconsistency which, all things considered, it would be better to 
resolve.

K. Section VII, Paragraph 4 - Since I missed some of the 
final meeting, was there discussion regarding the last sentence of this 
paragraph? If there was not, l would rather not have such terms 
inserted; if there was, even in an agreement in principle, I would like 
the terms "fleshed out" a little.

L. Section IX - Since Comprehensive Plan Amendments are 
probably necessary to effectuate the terms of any agreement, and 
since we probably will coincidentally find ourselves in an 
amendment round when the time comes, let's not specify an effective 
date in that manner. We may wish to state only that the effective 
date is after Court Approval and upon adoption of all curative 
ordinances, etc., with a timetable for the same to be set by the Final 
Settlement Agreement.

Thank you again for your effort in drafting the Agreement in 
Principle. Hopefully this will only be the first such agreement.

If you have any questions, please do not hesitate to contact me.

Yours truly,

Bradly Roger Bettin

BRB/met



FIRST REVISED 
AGREEMENT IN PRINCIPLE

I. PREAMBLE
In the interest of settling the claims raised in Houston v. 

City of Cocoa. (89-82-CIV-ORL-19, United States District Court,
Middle District of Florida) and administrative objections to the 
release and use of funds provided under the Housing & Community 
Development Act of 1974 pending with the U.S. Department of 
Housing & Urban Development, the Plaintiffs (the Plaintiff class 
and the administrative objectors) , the Defendants (the City of 
Cocoa and Cocoa Redevelopment Agency) and, for the purpose of 
resolving the administrative objections, the U.S. Department of 
Housing & Urban Development, have entered into the agreement set 
forth below. This agreement has been reached after extensive 
arms-length negotiations between representatives for the parties 
culminating in a full afternoon negotiation session at Cocoa City 
Hall on August 31, 1989, at which the representatives reached
this agreement in principle, subject to ratification by the parties.

II. NON-ADMISSION OF LIABILITY
Nothing herein shall be construed as an admission of 

liability by the City of Cocoa or the Cocoa Redevelopment Agency. 
Defendants maintain that the claims and objections asserted 
against them are without merit, but consider it desirable to 
settle^ these actions in the manner and upon the terms and 
conditions hereinafter set forth to avoid further expense, 
inconvenience and the distraction of burdensome litigation, and 
to finally put to rest the claims asserted in these actions.
III. ZONING

1* The Core Redevelopment Area (herein "CRA") shall be 
rezoned RU-2-10 (low-medium density SF/MF residential) with the 
following modifications of boundaries:

a. The western fringes of the CRA fronting U.S. 
Highway 1 shall remain zoned CP (Commercial Parkway) except that 
the boundaries of the area zoned CP shall be modified so that 
existing residential uses shall remain in the area to be rezoned 
RU-2-10. Only vacant lots fronting U.S. 1 shall remain in the 
redrawn CP district. These new boundaries are crenerallv 
reflected in the attached Map of the CRA.

b* The northern and eastern fringes of ’the CRA 
fronting State Road 520 and Florida Avenue, respectively, shall 
remain zoned CC (Core Commercial) except that the boundaries

1



shall be modified so that existing residential uses shall remain 
in the area to be rezoned RU-2-10. Only vacant lots fronting 
S.R. 520 or Florida Avenue shall be included in the redrawn CC 
District. (See Map).

c. The exact boundary lines of the CRA shall be 
determined based upon identification of lot lines between the 
property in the CRA and adjoining property outside the CRA.

2. The Cocoa Zoning Ordinance shall be amended in the 
following manner:

a. The RU-2-10 zoning classification shall be 
modified as follows:

(i) Multifamily residential dwellings containing 
more than four units in existence at the adoption of this 
amendment shall be added to principal uses in the RU-2-10 
district;

(ii) The specific uses of land and structures 
existing as of March 8, 1988, which were permitted uses in the CW 
(Commercial Wholesale) district shall be principal uses in the 
RU-2-10 district. This specific CW use may be converted to other 
uses as follows:

(A) Such specific use may be converted to
two other CW permitted uses: (l) warehousing and wholesaling in
completely enclosed structures; or (2) service and repair 
establishments limited to drycleaning and laundry plants, 
business services, printing plants, welding shops, and light 
assembly/manufacturing.

(B) Any CW use referenced in (ii) or (ii)(A)
above may be converted to: (1) any use permitted in the CC
district under Section 13 (a) (1)-(12) as of the date of the 
adoption of this amendment; or (2) any permitted residential use 
in the RU-2-10 district.

(C) The conversion of a CW use referenced in 
(ii) or (ii)(A) above to a CC use under (B)(1) above terminates

spec-±-£-i-s all CW use and the right to convert to other 
specified CW uses. The conversion of such CW use to a RU-2-10 
use referenced in (B) (2) above terminates 3-tteh---spe-e-t-£-i-s all CW 
use and the right of such use to convert to a CC use under 
(B)(1).

(iii) The specific uses existing in the CC
district as of the date of the adoption of this amendment and 
permitted in the CC district under Section 18(a)(1)-(12) or 
converted to such a CC use as provided under (ii) (B) (1) above are 
principle uses in the RU-2-10 district. This specific CC use may

2



be converted as follows:
(A) Any such CC use may be converted to any 

other use permitted in the CC district under Section 18(a)(1)- 
(12) or to any residential use permitted in the RU-2-10 district.

(B) The conversion of a CC use referenced in 
(A) above to a residential RU-2-10 use terminates sueh-apeeif±e 
all CC use and the right to convert to any other CC use.

(iv) A property owner of a principal use set 
forth in fii) or fiii) above shall have the right to continue the 
principal use unless the property is converted to another use as 
set forth in fii) or fiii) above or unless the property is 
abandoned as defined in Article X, 57 of the Zoning Code.

b. The CC classification shall be amended to provide 
that the buffer requirements applicable to adjacent residential 
development be applied to adjacent residential districts.

c. The non-conformities section of the zoning 
ordinance pertaining to non-conforming lots of record (ART. X, 
Sec. 3) shall be amended to permit the rebuilding of single­
family homes in existence on the date of this amendment even if 
the lots do not meet the applicable yard or setback requirements.

3. The RU-2-10 classification shall be amended to include 
Transferable Development Rights (TDRs) to promote the development 
of homes affordable to low-income households in accordance with 
the New Construction Program described below at Section IV, 
paragraph 2. a. The TDRs will permit the transfer of certain 
development rights obtained in the RU-2-10 district to the 
Central Business District (CBD).
IV. NEIGHBORHOOD IMPROVEMENT PLAN

1. Housing Rehabilitation Plan
a. The City shall make available $675,000 from CDBG, 

redevelopment agency funds or other funds for housing 
rehabilitation for members of the Plaintiff class who are low 
income homeowners eligible for such funds. Up to $675,000 shall 
be expended for housing rehabilitation for eligible homeowners in 
the CRA. These funds shall be provided over a five-year period 
commencing after the effective date of this agreement.

b. The^ City shall make continued application to HUD 
for rental rehabilitation funds. The City shall make affirmative 
efforts to advertise, promote, and target the use of rental 
rehabilitation funds for priority use in the CRA. The City shall 
also a-ppty support applications for Section 8 certificates and 
vouchers and make affirmative efforts to promote the use of

3



Section 8 and voucher subsidies in conjunction, with rental 
rehabilitation to ensure the continued affordability of those 
rental units to members of the Plaintiff class who are low-income 
renters.

2. New Construction Program'
a. The City agrees to support a new construction 

program designed to construct single family residences in the CRA 
for low income families. The program shall not be a City budget 
program unless affirmatively established as such by the Council. 
The goal of this program is the eventual development of the 
approximately 30 vacant lots in the CRA to 30 homes for low 
income households. The parties shall endeavor to locate a non­
profit community development corporation (such as Habitat for 
Humanity) which will agree to construct the homes. The same or 
an additional non-profit CDC shall administer a Housing Trust 
Fund ("Fund"). The Fund shall rechannel the proceeds from the 
sale of the homes and from the sale of TDRs generated from the 
development of such homes to purchase additional vacant lots in 
the CRA and construct additional homes. The City agrees to 
assist this program by donating at least three city-owned lots in 
the CRA to the Fund. The Fund shall screen households for 
eligibility in the program and shall sell completed homes to 
eligible households as such homes become available. Eligible 
households shall have incomes at or below 50% of the SMSA median 
family income adjusted for household size. Mortgage payments 
shall not exceed 30% of a household's adjusted gross income.

b. The City agrees to make application to HUD for a 
special purpose grant pursuant to 24 C.F.R. §570.410 for a 
Neighborhood Community Center in the CRA. In the event such 
application is approved, the City shall donate fche-tehird one of 
the above-referrenced city-owned vacant lots in the CRA to the 
Fund for this purpose. The Fund shall locate a non-profit CDC to 
construct and administer the -Center. In the event the 
application is denied, this lot may either be donated to the Fund 
for another home under paragraph 2.a. above, or, at Plaintiffs' 
request, remain available for a community center, in which case, 
funds allocated for housing rehabilitation under paragraph l.a. 
above may be employed to defray the costs of the Center.
V. HISTORIC PRESERVATION PLAN

1. The City agrees to nominate and seek the placement of 
structures in the CRA in existence since 1940 on the Florida 
Master Site File.

2. The City agrees to declare a historic district covering 
certain portions of Magnolia Street, renamed Richard S. Stone 
Street, in the CRA as identified in the attached Map. The City 
shall work together with the Central Brevard Branch of the

4



N.A.A.C.P. and Save Our Neighborhood to nominate the 
S-feree-te Richard E. Stone Historic District and eligible structures 
in the CRA to the U. S. Department of Interior's National 
Register of Historic Properties.

3. The City agrees to nominate properties under paragraphs 
1 and 2 above only with the consent of the owners of such 
structures.
VI. CONSISTENCY CLAUSE

The City agrees to revise the Cocoa Comprehensive Plan to 
render it consistent with this agreement. Such revisions shall 
comply with proper planning principles and shall include revision 
of the Future Land Use Map of the Cocoa Comprehensive Plan to 
denote the low/medium density residential land use of the CRA and 
to reflect the historic resources of the CRA. The Comprehensive 
Plan shall also be revised to reflect the goals of housing and 
neighborhood improvement set forth in this Agreement.
VII. FUTURE ASSURANCES

1. The City agrees not to initiate a rezoning of the CRA 
or take any other action in the CRA which has the purpose or 
effect of involuntarily displacing current or future members of 
the Plaintiff class. In the event of a rezoning initiated by the 
request of a property owner, the City agrees to give due weight 
to preserving the low/medium density residential and historic 
character of the CRA in acting on the rezoning request.

2. In rezonings initiated by property owners, the City 
agrees to provide individual mailed notice to all property owners 
and residents in the CRA living within 500 feet of property 
considered for rezoning, together with all other notice required 
under applicable laws. In any city-initiated rezoning involving 
any property in the CRA, the City shall provide individual mailed 
notice to all residents and property owners which notice shall 
refer to and explain the terms of the Consent Decree, together 
with all other notice required under law.

3. The City agrees to enforce all ordinances requiring the 
removal or regulation of junk yards or unenclosed storage areas 
in the CRA and shall take action to remove or correct conditions 
that pose hazards to CRA residents or that substantially 
undermine the quality of the residential environment.

4. The City affirms its commitment to continue to comply 
with Title VI of the Civil Rights Act of 1964, Title VIII of the 
Fair Housing Act of 1968, the Housing and Community Development 
Act of 1974, the Uniform Relocation Act, and all relevant 
amendments to these laws and regulations promulgated thereunder. 
The City will provide an annual report to the U. S. Department of

5



Housing and Urban Development, Fair Housing and Equal Opportunity- 
Office, 75 Spring Street, Richard B. Russell Bldg., Atlanta, GA. 
30303 of the housing and rental rehabilitation funds expended by 
the City overall and in the CRA. These reports shall also 
include all efforts by the City to develop innovative ways of 
revitalizing the CRA through housing rehabilitation and new 
construction. Tha— G-irfey- - -v-i-L-L— provide— epeeial— not-iroe-— t-o— -the
res- indent a- — od—  -the—  £ RA — of — i-ta- - e-f -£ orts— to — rev-irtal-iae—  the— area 
through -its -rehahirf irtation -and- -other -heuarng -programsT
VIII. DISPOSITION OF COMPLAINTS

The parties shall enter into a Stipulation for a Consent 
Decree disposing of the federal lawsuit and administrative 
objections as follows:

a. The Consent Decree shall remain and be fully
enforceable in federal court by all parties, except that HUD 
shall only have authority to enforce Section VII, paragraph 4 of 
the Agreement and may enforce this clause only through available 
administrative remedies.

b. Plaintiffs' damages claims will be dismissed
without prejudice.

c. The parties expressly reserve the right to apply 
for attorneys' fees and costs or to oppose such applications.

d. All of the Plaintiffs' other claims and
administrative objections shall be withdrawn.
IX. EFFECTIVE DATE

This Agreement shall become effective after final approval 
by the Court of the Consent Decree and upon the City Council's 
passage of an ordinance or ordinances necessary to effectuate, its 
provisions. In the event that all ordinances necessary to
effectuate the Consent Decree are not enacted witeh-irt— 6-0--da-ya

— final--approval in accordance with the Schedule 
set forth in the Consent Decree, this Agreement and the Consent 
Decree shall be null and void.

THE CITY OF COCOA PLAINTIFFS

BY: ______________________  BY:__
D a t e d : _________________  Dated:

6



THE COCOA REDEVELOPMENT AGENCY ADMINISTRATIVE OBJECTORS

BY:__
Dated:

U.S. DEPARTMENT OF HOUSING & URBAN DEVELOPMENT

BY:____________________________ _
Dated:

BY:__
Dated:

7



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SUMMARY GROUPINGS OF APPROXIMATE TIME



MEETINGS AND TELEPHONE CONFERENCES WITH CO-COUNSEL *

HOURS BREAKDOWN

Attorney Pre-Complaint Post-Complaint

Jean McCarroll 17.1 
Karl Coplan 21.1 
Ronald Slye (law clerk) 7.8

10.3
58.1

John Boger 
Penda Hair 
Jon Dubin * ** 
Alice Brown

9.4
61.9

148.2
4.8

10.1
313.8

7.2

Judy Koons
Bill Abbuehl
Kim Brautigam
Mary Wright (paralegal)

Totals:

168.7 85.9
25.9 1.8
6.5 5.8

10.5 10.4

477.1 508.2

* Excluding time specifically related to the Complaint.
** Jon Dubin time is "approximate" as his time records are

block entries and not broken down by individual entry.

c :\wp50\Scotts\Co-Cnsel.hrs
11-21-91:mah



DOCUMENT DRAFTING. REVIEW AND EDITING 
(excluding the class Complaint)

HOURS

Attorney

Jean McCarroll 
Karl Coplan
Ronald Slye (law clerk)

John Boger 
Penda Hair 
Jon Dubin 
Alice Brown
Judy Koons
Bill Abbuehl
Kim Brautigam
Mary Wright (paralegal)

Totals:

c:\wp50\Scotts\AttyFees.hrs 
11-21-91:mah

BREAKDOWN

Hours

42.4
50.4 
28.3

-  0  -

184.7 
149.2 

1.7
602.1

0.5
1.0
9.3

1069.6



DRAFTING- REVIEWING AND EDITING COMPLAINT 
HOURS BREAKDOWN

Attorney Hours *

Jean McCarroll 
Karl Coplan

9.4 
6.2

Ronald Slye (law clerk) - 0 -

John Boger 
Penda Hair 
Jon Dubin 
Alice Brown

5.9 
67.8 

128.8 
- 0 -

Judy Koons 
Bill Abbuehl

31.8 
- 0 -

Kim Brautigam - 0 -
Mary Wright (paralegal). - 0 -

Totals: 249.9

* Includes T/C's with Co-Counsel directly related to Complaint

c :\wp50\Scotts\Complaint.hrs
11-02-91:mah



LEGAL RESEARCH AND MEMOS OF LAW
HOURS BREAKDOWN

Attorney Pre-Complaint Post-Complaint

Jean McCarroll 
Karl Coplan
Ronald Slye (law clerk)

John Boger 
Penda Hair 
Jon Dubin 
Alice Brown

Judy Koons
Bill Abbuehl
Kim Brautigam
Mary Wright (paralegal)

34.0 11.5
75.8

34.0 22.9
86.7 53.6

27.5

90.3 43.0
3.0 3.5
6.4

Totals: 331.0 162.0 = 493.00

c :\wp50\Scotts\Research.hrs
11-21-91:mah



FACT INVESTIGATION
(indues Meetings and T/C's with Clients) 

HOURS BREAKDOWN

Attorney Pre-Complaint Post-Complaint

Jean McCarroll — —
Karl Coplan — —

Ronald Slye (law clerk)

John Boger 15.0 —

Penda Hair 20.5 — —
Jon Dubin 182.4 —
Alice Brown — “ “

Judy Koons * 379.7 171.6
Bill Abbuehl — —
Kim Brautigam 3.5 17.1
Mary Wright (paralegal) 172.9 55.1

Totals: 774.0 243.8 = 1017.8

* Also includes preparation for, travel time and 
attendance at City Council, Planning and Zoning 
and Redevelopment Board Meetings.

c :\wp50\Scotts\Facts.hrs
11-21-91:mah



CLASS CERTIFICATION/4.04 MOTION
HOURS BREAKDOWN

Attorney Hours

Jean McCarroll 0.7 
Karl Coplan 14.6 
Ronald Slye (law clerk) - 0 -

John Boger 3.5 
Penda Hair 41.1 
Jon Dubin 85.1 
Alice Brown - 0 -

Judy Koons 12.8 
Bill Abbuehl - 0 - 
Kim Brautigam - 0 - 
Mary Wright (paralegal) - 0 -

Totals: 157.8

NOTE: Some attorneys' time records do not specify thenature of the work performed (i.e., only reference 
"motion" or "memorandum") and this time has not been 
included in the foregoing calculations.

c :\wp50\Scotts\class.hrs
11-04-91:mah



MOTION TO INTERVENE/CONSENT DECREE
HOURS BREAKDOWN

Attorney Hours

Jean McCarroll 0.2 
Karl Coplan 7.1 
Ronald Slye (law clerk) - 0 -

John Boger - 0 - 
Penda Hair - 0 - 
Jon Dubin - 0 - 
Alice Brown 24.3

Judy Koons 4.9 
Bill Abbuehl - 0 - 
Kim Brautigam 3.5 
Mary Wright (paralegal) - 0 -

Totals: 40.0

NOTE: Some attorneys' time records do not specify the
nature of the work performed (i.e., only reference 
"motion" or "memorandum") and this time has not been 
included in the foregoing calculations.

c :\wp50\Scotts\Mot-Intrv.hrs
11-04-91:mah



application for a t t o r n e y s7 fees

HOURS BREAKDOWN

Attorney Hours

Jean McCarroll - 0 - 
Karl Coplan 0.2 
Ronald Slye (law clerk) - 0 -

John Boger - 0 - 
Penda Hair - 0 - 
Jon Dubin - 0 - 
Alice Brown 44.4
Judy Koons 23.2 
Bill Abbuehl - 0 - 
Kim Brautigam 2.5 
Mary Wright (paralegal) - 0 -

Totals: 70.3

c:\wp50\Scotts\AttyFees.hrs 
11-04-91:mah



Mathew s, Smith 8c Hailey

FRANK m . BEOELL PR O FE SSIO N A L  A SSO CIA TIO N
Da n i e l  l . De C u b e l l i s  ATTORNEYS AT LAW
J O H N  H DYER. J R

SOI  FIRSTATE TOWER 

2 5 5  S O UTH O RANGE AVENUE 

ORLANDO . FLORIOA 3 2 8 0 1

November 22, 1991

LAWRENCE G MATHEWS, J R  

LIL8U RN R RAILEY. Ill 

MAURA T SMITH 

MART M WILLS

POST OFFICE BOX 4976 
ORLANDO. FLORIDA 32802-4976 

TELEPHONE (407) 872-2200 
TELECOPIER (407) 423-1038

James K. Green, Esquire 
James K. Green, P.A.
One Clearlake Centre, Suite 1300 
250 Australian Avenue, South 
West Palm Beach, FL 33401

Re: Houston, et al. v. The City of Cocoa, et al.
Dear Jim:

In the interest of conserving costs, we are not 
including, in our service copies to other Plaintiffs' counsel, 
copies of Judith E. Koons' time records, especially since we 
received these documents from you and her. If other Plaintiffs' 
counsel would like to receive copies of these time records, please 
contact us.

Very truly yours,

Frank M. Bedell
FMB:ajc
cc: Judith E. Koons, Esquire

Julius Levonne Chambers, Esquire
Alice L. Brown, Esquire
Penda D. Hair, Esquire
Jean M. McCarroll, Esquire
Karl Coplan, Esquire
Jon C. Dubin, Esquire

FMB\Greenl.ltr 
11-22-91:ajc