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Item L2 J LAW OFFICES HUGH .J. MORGAN JAMES T, HI!:NORICK KAREN K. CABANAS uEOOE V. REGANTE 3 I 7 WHITEHEAD STREET KEY WEST, FLORIDA 33040 W. CURRY HARRIS (1007 -1988l HILARY U, ALBURY (1920 -t gO g) MORGAN & HENDRICK FAX TRANSMISSION TO: JIM ROBERTS MAYOR SONNY MCCOY COMMISSIONER GEORGE NEUGENT COMMISSIONER DIXIE SPEHAR COMMISSIONER NORA Wn.LIAMS COMMISSIONER MURRAY NELSON TIM MCGARRY CLERK'S OFFICE, BELLE DESANTIS FAX #: 292-454// 292-357;:// 872-919~' , 292-3466 / (305) 289-630~ /' (305) 852-716~ /' (305) 289-253~ 295-3663 FROM: KAREN CABANAS, ESQ. DATE: ApRIL 12, 2002 SUBJECT: GRowm MANAGEMENT REpORT TRANSMITTER: JON! Total number of pages including this cover sheet: 5 ORIGINAL DOCUMENT(S): x WilL NOT BE SENT REGULAR COMMENTS: WILL BE SENT OVERNIGHT The infonnation contained in this facsimile message is attorney privileged and confidential, intended only for the use ofthe individual or entity named above. If1he reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this conununicatioll is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone and return the original message to us at the above address VIA the U. S. Postal Service, If you do not receive all pages, please call back as soon as possible 305-296-5676, 'lbe following is our fax number 305-296-4331. P.O. Box I I 17, KEY WEST, FL 3304 I $ TELEF'HONE 305 296-5676 $ FACSIMILE 305 295-433 I L~J GROWTH MANAGEMENT LITIGATION REPORT TO: BOCC; Jim Hendrick; Tim McGarry; Jim Roberts FROM: Karen K. Cabanas DATE: April 12, 2002 Vacation Rentals Neumont (Federal Class Action) - Federal class action case alleging vacation rental ordinance was prematurely enforced and is an unconstitutional taking of Plaintiffs' properties. Awaiting ruling on whether the Judge will adopt the Magistrate's recommendation to dismiss all claims under jurisdictional doctrines of abstention and ripeness. If all claims are dismissed, Plaintiffs may appeal to the 11 th Circuit federal court or may attempt to file a new cause of action in state court. However, such claims should now be barred by the statute oflimitations. ($49,438.75 as of March 31, 2002). Takings Claims New Port Largo - State "physical occupation" takings claim that had been remanded back to state court when federal claims were dismissed. Status conference has been set for April 22. ($13,274.50 as of March 31, 2002). Shadek - Takings claim for ~570 acres of North Key Largo property based on the 1980's Major Development Moratorium. Trial was held February 21,22 and March 13. Judge Garcia ruled in favor of Plaintiffs on all takings claims, declaring Monroe County liable for denying Plaintiffs all economic use oftheir property for an eight-year period. Petition for Certiorari review was denied by the 3rd District Court of Appeals as a non-fmal order. Jury trial on damages is scheduled for May 28-30. ($161,089.74 as of March 31, 2002). Tropic Leisure Recreation - Takings claims regarding property on Upper Matecumbe in which Plaintiffs claim they were denied building pennits for new construction. Plaintiffs have filed suit against Islamorada and Monroe County since pennitting requests began prior to incorporation. Plaintiff filed an application for a building permit with Monroe County prior to Village incorporation and eventually received a pennit from Islamorada subsequent to incorporation. Monroe County's motion for summary judgment was denied based on existence of disputed material facts. County will pursue establishing those facts through discovery and will likely re-file for summary judgment. ($11,864.00 as of March 31, 2002). PhelpslHardin - Claim brought in federal court for due process and inverse condemnation based on code enforcement proceedings that resulted in a lien on Plaintiffs' property. Monroe County has filed a motion to dismiss based on Plaintiffs' failure to properly appeal code enforcement orders and because Plaintiffs' similar claims are still pending in state court. Awaiting ruling on those motions. ($1,049.00 as of March 31, 2002). Gustinger - Case stems from code enforcement prosecution and order imposing lien. Building permits were subsequently issued by Village of Islamorada. Monroe County filed suit to collect monies due under lien. Property owner counter-claimed for declaratory relief and inverse condemnation based on code enforcement proceedings. Plaintiff was found in violation of various code provision for failure to reconstruct or demolish a non-conforming structure damaged by hurricane. Motion for Summary Judgment is scheduled for May 14. ($5,185.50 as of March 31, 2002). Pontin - Case alleging temporary and permanent taking of property due to allegedly conflicting regulations of County and ACOEIDEP wherein each required the other's prior approval before issuing permits to fill land & plant trees. Monroe County has filed a motion to dismiss based on statute of limitations because Plaintiff was first made aware of the conflicting regulations in 1984 and has also failed to exhaust administrative remedies. Claims were previously filed and dismissed in 1985 for failure to seek administrative remedies. Defendant Army Corps of Engineers has removed case to federal court. Defendants' motions to dismiss are pending. Court has set oral argument on May 15 for all pending motions. ($2,662.50 as of March 31, 2002). Moore - (old Marvin' s restaurant) - Seeking declaratory relief and takings claims based on County staffs interpretation and application of floodplain regulations. Motion to Dismiss has been filed based on failure to exhaust administrative remedies (Code provides specific procedures for appealing such interpretations) and failure to obtain a final decision from the County regarding the application of said regulations through the administrative process. Awaiting ruling on motion to dismiss. ($3,670.00 as of March 31,2002). Good - Seeking declaratory relief and takings claim for -16 acre Sugarloaf Shores property due to commercial moratorium which began January 4, 1996. Monroe County is preparing to file motion for summary judgment. ($4,072.50 as of March 31, 2002). Industrial Communications & Electronics - Federal district court case alleging denial of due process, equal protection and inverse condemnation based on prior wireless tower moratoria. Monroe County has filed motion to dismiss based on res judicata/collateral estoppel (issue & claim barred by prior court ruling). Plaintiff previously and unsuccessfully challenged moratorium while in effect and should be barred from re-litigating those issues. Awaiting ruling on motion to dismiss. ($1,777.50 as of March 31, 2002). Signs & Billboards Republic Media/Outdoor Systems - Declaratory action claim filed by billboard owners challenging applicability of Post-Hurricane Emergency Permitting Policy and the billboard valuation schedule pursuant to code regulations prohibiting repair of non-conforming billboards damaged beyond 50% of their value. No pending motions. ($15,077.50 as of March 31,2002). 2 Other Matters Taxpayers for Electrification of NoN ame Key - Declaratory, vested rights, and ~ 1983 claims challenging Monroe County's policy that installing commercial electric service to No Name Key is prohibited by the 2010 comprehensive plan. Proposed settlement agreement was denied by BaCC; case will proceed in litigation. Property owners opposing electrification were granted leave to intervene. Case has been set for trial June, 2002. Hearing on Monroe County's Motion for Summary Judgment is set for May 22. ($8,419.50 as of March 31, 2002). Clay (Big Pine Moratorium) - Complaint filed against Monroe County alleging various claims (takings, vested rights, etc.) based on the de facto building moratorium on Big Pine due to the traffic level of service and concurrency mandate. Judgment was entered in favor of Monroe County on basis that concurrency is a state-imposed mandate, not a County regulation; also based on fact that FDOT is responsible for upgrading u.s. 1, not Monroe County and issuance of any building permits by Monroe County may violate state concurrency and Endangered Species Act provisions. Plaintiffs have appealed to 3 rd District Court of Appeals. Monroe County's Answer Brief is due May 17. ($8,264.00 as of March 31, 2002). Galleon Bay. - Petition for Certiorari review of BOCC' s decision to deny vested rights application. Case has been re-assigned to. lower keys division. ($4,835.00 as of March 31, 2002)(does not include prior Galleon Bay matters). Ambrose - Declaratory action claiming vested rights under g380.05(18) based on filing of subdivision plats. Pursuant to summary judgment proceedings and his previous orders, Judge Payne ordered that Plaintiffs prove ownership of a single Plaintiffs' lot so that legal issues may be appealed rather than spend extensive time in trial court litigating ownership issues as to each lot at issue. Various environmental groups were also granted leave to intervene. Court entered final summary judgment for approximately 75 Plaintiffs. Upon entry of final written order, Defendants will appeal to Third DCA. ($43,976.25 as of March 31, 2002). Upper Keys Citizens Association - Two separate cases: (I) Appeal to Div. of Admin. Hearings of Planning Commission's approval of North Key Largo sub-station for Fla. Keys Electric Co-Gpo County's briefhas been submitted. Awaiting submittal ofIntervenorFKEC's brief and scheduling of oral argument. (2) Appeal to Third DCA of circuit court dismissal of certiorari action. Awaiting ruling on Monroe County's Motion to Dismiss appeal for lack of jurisdiction due to parallel case seeking to litigate same issues before DOAH. ($5,430.00 as of March 31, 2002). Toppino's - Appeal ofBOCC's decision denying re-zoning based on Navy ACQUIZ overlay zone prohibiting new development. Re-zoning constitutes "new development" as defined by state growth management act. Florida Keys Citizen's Coalition - DOAH Appeal of Administration Commission's rule change regarding use of "restored permits" for affordable housing, increasing annual residential permitting caps, and allocation of nutrient reduction credits. Awaiting responses to discovery requests. 3 Moore (NROGO Appeal) - Appeal of DCA's Final Order approving the County's recently-adopted NROGO regulations. Final hearing has been scheduled for August. A waiting receipt of responses to discovery requests. ($247.50 as ofMarcb 31, 2002). 4