Item J1
_.-~~................
Hug11 1, Morgan
,h\l'ne& T, Hendrick
Robert Cmtro,L Jr
Derek V, Howard
LAW OfFICES
MORGAN & HENDRICK
317 WHITEHEA.D STREET
KEY WEST, FLORIDA 33040
TfI,EPHONt: 305.296,5676
FACSTh1l.LE 305.296.4331
W. Curry Harris
(1907-19&8)
I.mary D, Albury
(1920- ! 999)
FAX TRANSMISSION
TO: Mayor Dixie Spehar
Mayor Pro Tern Charles McCoy
Corrunissioner George Neugent
Cornmissioner David Rice
CommisSlOner .Murray Nelson
Richard Collins, Esq.
Thomas J, Willi
Tim MCGa.Tf
(292-3466)
(292-35Tl)
(872-9195)
(289-6306)
(8527162)
(292-3516)
(292~4S44)
(289-2854)
FR01VI:
Teresa Ross fQ:l' Derek V, Howard, Esq,
DATE:
June 1, 2005
SUBJECT:
Growth Ma..'1agement Litigation Report
Total number of pages including this cover sheet:
ORIGINAL DOCIJMENT(S):
_X_ \\lLL NOT BE SENT w1LL BE SENT
REGULAR OVE~'l'IGHT
COl\L'1ENTS: Our File # 160~O 1
"the iIlfmms!im; w!lu.nc<l in .1m tkt,mi,€ n1q,~g. is Mlom"Y pr;vi1eflcd ""Ii cllafidcIHIB.l, i!1I~llded tm;y ib, lhc lW' of thl/' mdi'i!tll>al Of entity "am~d
.lbove, jf IDZ lc~der of !h~!t mc~;:r~ge is not te~e iruJ::nded f-e'cip~cf1~ yot! are hereby rio~tfi~d L'1a{ i1<'iY l:H5~emmmion~ dis!:ribt}{[cn or -c-Opy ijf this:
W~UIlUnj~atiDn i. sHi<ody praniiJiltd ify,>t< ha~c )""<;c"iv~d ,hi~ ~omm'UlIC~!iOll in tITor, plc~e irnmeJiMdy nOhfy U~ b1 ttkpho~cand relurn t\l~ 0ng:l1ill
message liHU fit .!l'~ a!)","~ lldclfC$' vIA llie U S P"Sl~! Sc,"",ct lfyou de not reGdvc all pG;gcs, j)ic..~e can back as ;;oon as possible 305,296,5616 The
fuHowing 1& 01<, f.lx nl<mhcr J0F%!t6-433 1,
PO. !;lox 1i 17, KEY WEST FL 33041 :;; nU:::O"HONe 305296-5678 s FACSiMilE 3052964331
_-............----~-- _..~~---'-------"--,-_.
~~_.-~-
GROWTH MANAGEMENT LITIGATION REPORT
TO:
Board of County Commissioners
Richard CoBins
County Attorney
Timothy McGarry
Director, Growih Management Division
FROM:
Thomas l
County Administrator
Derek Howard, Esq.
Morgan & Hendrick
DATE:
JtL.'1e 1, 2005
Vacation Rentals
Neumont (Federal Class Action) - Plain.tiffs filed a class action suit in U,$. District Court alleging
vacation rental ordinance (Ordw..ance 004~ 1997) was prematurely enforced, is an unconstitutional taking
of Plaintiffs' properties, and was adopted in violation of due process. On June 20, 2004, the US
District Court entered final judgment in favor of the County, On July 15,2004, Plaintiffs/Appellants
filed a notice of appeal to the U.S. Court of Appeals for the 11 th Circuit from final judgment of the
District Court, and aU interlocutory orders giving rise to the judgment On September 15, 2004,
AppellaI1ts filed a motion to certify state-law questions to the Florida Supreme Court and to postpone
briefing pending certification; the County filed its response on October 7; Appellants filed a reply on
October 15,2004. On October 18.2004, a mediation conference was held, On October 19, 2004, the
Coun denied Appellants' motion to stay briefing and ruled motion to certify state-law questions to the
Florida Supreme Court is carried with the case. AppeHants filed their initial brief on December 15,
2004. Monroe County filed its response brief on Februm:y 22, 2005. Appellants filed their reply brief
on March 11,2005. On April 7, 2005, Monroe County filed amotion for leave to file aSllITepIy bricfin
responsero Appellants' new argument rdating to the Class Action Fairness Act of2005 OnApri121,
2005, Appellants filed their response to Monroe County's motion, which included a declaration of a
local property manager offered as support for AppeUants' assertion that a majority of the subject class
members are out-oF-state residents. On April 27, 2005, Monroe County filed a motion to strike the
declaration, which was denied on May 25, 2005. On May 2, 2005, the Court entered art order granting
Monroe County's motion for leave to file a surreply brief; hriefwas filed on May 24, 2005, Pa.-rties are
awaiting setting of oral argument. ($122,759.76 as of April 30, 2005)
Takines Claims
Emmert - Complaint seeking inverse conderr'J1auon based on partial graIlting beneficial use
application. Plaintiffs were granted partial beneficial use from wetland regulations, thus exp311ding the
buildable area of their vacant Ocean Reefiot from approximately 1,800 to 2,500 square feet However,
Plaintiffs argue that they cannot build within this area due to Ocean Reef Club Association deed
restrictions requiring setbacks in excess of those required by Monroe County. Plaintiffs allege that
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Monroe CO'lmty's actions have resulted in Ii denial of aU economic use of their property, despite
expressly allowing a 2,500 square foot buildable area. Monroe County's motion to dismiss was denied
on December 12,2002. Mediation was held on October 21, 20();t Case was set for bench trial on
November 29,2004. On November 22, 2004, Plaintiffs filed an emergency motion for continuance,
motion was heard and granted on November 24, 2004. On November 22, 2004, Plaintiffs also filed a
motion for leave to me a second amended complaint in order to add a claim of vested rights. The
motion was heard on Ja.'1uary 5, 2005. On March 10, 2005, the court entered an order grantLig
Plaintiffs' motion for leave to file a second amended complaint; the complaint was filed on March 31,
2005 On March 31 \ 2005. Plaintiffs also moved for the entry of default judgment against L~e County
for failure to file an answer to the second amended complaint (despite the fact t.~at the second arnended
complaint was not previously filed); the County moved to strike Plaintiffs' motion on April 4, 2005.
The County timely filed its a.'lswer to the second amended complaint on April 8,2005. On May 3,
2005, Plaintiffs filed a motion for partial sum_Jnary judgment, which is set fur hearing on July 11,2005.
($65,216.8& as Df Apri130, 20(5).
Galleon Bay - Three cases: (1) appeal of vested rights decision; (2) ta\Qngs claim; and (3) third part'j
complaint against State of Florida seeking contribution, indemnity and subrogation.
(1) On June 17, 2004, the 3rd DCA. denied the County's petition for \\1'lt of certiQrari.
(2) As to tJ.,e takings claim, Judge Payne emered summary judgment in favor of Pia in tiff on liability on
November 10,2003, finding both a temporary and permanent taking ofthe subject property. Case was
scheduled 10 proceed \-villi a jury trial as to da.'11ages on August 9. 2004. At the pretrial conference on
July 26, 2004, however, Judge Payne agreed to modifY r.js order on liability to fmd only a pennanem
taking on April 21, 1994, and granted Plaintiffs request to continue the trial until October 12, 2 G04.
Plaintiffs colL.'1se1 was delegated the task of reducing the Court's announced ruling to a proposed
modified ordeL On August 18,2004, Judge Payne entered final judgment in favor of the County as to
PlaintiffHannelore Schleu. On September 24, 2004, the County submitted a proposed modified order
consistent with the Court'S July 26, 2004, ruling. On October 3, 2004, Plaintiff submitted a proposed
modified order that substantively contradicted and strayed from the Court's ruling; namely, the proposed
order found that a temporary taking occurred on April 13, 1997 On October 4,2004, the Couttentered
verbatim Plaintiff's proposed modified order, The trial was subsequently contimled UIltH Febmary 7,
2005. On October 22,2004, the Count)' filed a motion for rehearing arguing, infer alia, the verbatim
entry of Plaintiffs proposed modified order violated the procedural due process rights of the County.
On November 2, 2004, Plaintiff filed a reply to the County's motion for rehearing. On November 29,
2004, t.~e County filed an amended motion for rehearing and/or motion for reconsideration On
December 13, 2004, the Court granted the County's motion and vacated the modified order of October
4,2004. On April 27, 2005, Plaintiff filed its motion to a...-nend summary judgment on liability and
notice of confession of error (seeking to change taking date of April 21, 1994, to April}3, 1997), On
May 5~6, 2005, pursuant to court order, the parties (including Third-Party Defenda.'1t State of Florida)
pa.-ticipated in nonbinding arbitration before Gerald Kogan, Esq., a former member of the Florida
Supreme Court. The issues arbitrated included (1 ) whether the taking found to have occurred by the
trial COUJt was peunanent or temporary and (2) whether Monroe County is entitled to a contribution
from the State as to all or Ii portion of the just compensation that Plaintiff is owed forme taking, Parties
ate awaiting rendering of Koga!l's decision, which is expected by June 6,2005, On May 18,2005, the
State flied objections to Plaintiffs motion to amend summar; judgment order &"'1a requested a hearing
on the motion.
"j
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(3) As to third party complaint against State of Florida, t.~e State moved to dismiss for failure to state a
cause of action, as weH as a motion to transfer action to the Second Judicial Circuit in and for Leon
County, Florida, On May 24, 2004, the court denied the State's motion to dismiss as to the County's
claim of contribution, as weB as the State's motion to transfer. On May 24, 2004, the State moved to
substitute the Department of Community Affairs and the AdJuinistration Commission as third party
defendant's. On July 27,2004, t.'1e State filed a notice of appeal to the 3rd D,c.A. of the non-final order
denying the motion to tra.'1sfer venue and petition for writ of prohibition/certiorari. On August 24, 2004,
the Court granted County's motion to hold appeal in abeyance. On August 25,2004, the Court denied
County's motion to hold petition in abey<L'1ce~ The Court has deferred the deadline for the County to file
its response, pending resolution of matters in the Ql1derly'ing action. ($184,255.85 as of April 30, 2005;
does not include prior Galleon Bay matters).
Good ~ Plaintiff is seeking declaratory rebef and takings claim for -16 acre Sugarloaf Shores property
due to commercial moratorhuTI which began January 4, 1996. Plaintiff is also pursuing administrative
requirements for filh,g a claim under the Bert Harris Act. The County's motion to dIsmiss is being held
in abeyance until Plaintiff obtains 11 pre-application letter of lJ.,.VJ.derstanding as to the level of
development dillt is permissible on each parcel of property. Plaintiff and the County staff met on April
26,2004, to discuss potential development. On February 14,2005, the parties appeared before the court
for a statuS conference. On February i7, 2005, Plaintiff Lloyd Good again met witlt County staff to
discuss potential development. On March 7, 20Q5, the County issued a letter on the proposed
development of Tracts A and B (property S. of U.S. I). Planning staff is preparing a letter addressing
the development potential of the remaining property at issue (property N. of US I). A case
management conference before the court is scheduled for Juty 8, 2005. ($14,963.42 as of April 30,
2005).
PhelpslHardin - Plaintiffs filed claim in federal court for due process and inverse condemnation based
on code enforcement proceedings that resulted in a tien on Plaintiffs' property. Federal court entered
judgment in favor of Monroe County due to reinstatement of state court appeal of code enforcement
order. On August 10,2004, the County filed a motion to dismiss the state court appeal for lack of
prosecution, On September 27, 2004, the Court dismissed u~e appeal. On October 5" 2004,
PlaintiW Appellant filed a motion for rehearing of order granting motion to dismlsS appeal. On
November 5,2004, the Court entered an order granting Appellant's motion for rehearing and setting
aside and vacating dismissal. ($6,577.93 as of April 30,20(5).
Kalan _ Takings claim filed as to residential property in Cahill Pines & Palms subdivision for failure to
obtain ROnO allocation in 4 year period, Based on COlLnty's motion to dismiss, the parties agreed to
entry of 3...'1 order holding the case in abeYSJ1CC while Plmntiff seeks a beneficial use determination, as
required to exhaust available administrative remedies a.,')d ripen the case for judicial review. On June
24,2004, the Court entered an order requiring the County to render a beneficial use determination as to
subject property v.--ithin 90 days, On September 2 i, 2004, the Court granted the COlh"1ty'S motion for an
extension ohime, extending the deadline for the County to render a beneficial use determination until
January 20,2005. On October 26,2004, a beneficial use hearing was held before the Special Master.
The County filed fu"10rJ.er motion to extend the deadline fOT the rendering of a beneficial use
determinati.on, which remains pending- On March 4, 2005, the Special Master rendered a proposed
denial of beneficial use, whkh is on the Board's JUlle 15; 2005, agenda for consideration. ($2,825.77 as
of April 30, 2005).
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Other Matters
Department ofComnmnity Affairs v. Monroe County ~ Case before Land and Water Adjudicatory
CommissioIi in wr.ich DCA alleges that the County failed to comply with various Camp Pian
requirements by failing to routinely amend endangered species maps, a.l1d vegetation surveys as to high
& moderate quality hammock areas, DCA also alleges that the Cm.a"'!ty has allowed higher ROGD
scores than should have been allocated due to faUure to amend maps, thereby allowing more residential
development than should have been approved. Case was set for admi.,.Jistrative hearing in January 1004.
. .
DCA entered voluntary dismissal pending adoption of moratorium & revised regulations, but moved
forward ",ri1h. appeals as to individual permits (see below). ($14,796A2 as of April 30,2005),
.. Department of Community Affairs v. Monroe County - pursuant to 380.07, Florida
Statutes. DCA is appealing the building permit issued by Monroe County to Nancy Suarez~
Cannon. DCA alleges that Momoe County did not correctly interpret and apply portions Of1t5
Comprehensive Pian and LDRs in scoring the application for development. On February 25,
2004, the AU disnussed Respondent Nancy Suarez-Cannon from the case because sh.e sold the
t...1jree subject lots to DC6. L.LC. On May 4,2004, DC6 (intervenor) sent settlement proposal to
DCA in wl:1ich it proposes to relocate the subject building permit to a neighboring cleared lot
(the neighboring lot is the subject of a code enforcement proceeding in which the County alleges
the lot was illegally cieared); the proposal has been rejected, but settlement negotiation remain
ongoing. Final hearing is scheduled for June 7,2005, in Tallahassee. ($1,357.00 as of April 30,
2005).
OtDanid and Rilts v. Monroe County -Appellants/Petitioners filed a vested rights claim in Circuit
Cou.rt on March 13,2002. Appellants/Petitioners also appealed finding of Code Enforcement Special
Master 1hat they were conducting a com...'llcrda.1 business on the subject, which is in a residential zOning
district, without having first obtained a special use permit The court affirmed the Special Master's
finding and order, The vested rights claim went to bench trial on May 25, 2004, On October 7,2004.
the Court entered its final Judgment in favor of Appellarns/Petitioners. The Court held that
AppeHa.'1ts/Peti11oners have vested rights to maintain a mixed residential/commercial structure on the
subject property, and to use the subject property for both residential and commercial office purposes,
The relief gra..'1ted to Appellants/Petitioners is relatively narrow compared to the relief sought The
Court, for example, held iliat (l) any application for a cha.'1ge in commercial use is subject to current
regulations regarding non-conforming structures and uses, and (2) the commercial portion of the
structure must substantially comply with current standard building, electrical, mechanical and ph.:lffibing
codes before a certificate of occupancy is issued, The Court did not vacate its prior order affrrming t1-}e
Code Enforcement Special Master order. On November 4,2004, Petitioners filed motions to taX costs
and for attorney's fees pursuant to 9 57.105, Fla. Stat. On November 11, 2004, the COW1ty filed a
motion to strike Petitioners' motion for attorney's fees The motion was heard on January 13,2005;
order gnmting the motion was entered on Febru2...')' 9, 2005. On March 7,2005, Petitioners filed a
notke of appeal as to t..~e order grarlting the County'S motion to strike. ($29,446.72 as of April 30,
4
_ac~_.,_ ---"< ~. ~
Industrial Communications & ElectronicS v. Monroe County ~ LCE. filed action against Monroe
County in federal court alleging wireless tower moratoria violated the Federal Telecommunications Act
of 1996 and the Fifth and F ourteent.h Amendments to the Upjted States Constitution. The district court
granted the county's motion to dismiss on grolli'1ds of res judicata/coIlateral estoppel (claims were
identical to those brought in state court action and plaintiff faile.d to reserve federal c1ailns therein).
l.e.E. appealed the decision to the 11 th Circuit. County fiied its answer brief on March 1,2004. Federal
appeals court mediation process stayed the appeal pending action on LCE' s proposed settlement,
which was presented to and rejected by BOCC. On May 27, 2005, the 11th Circuit vacated the
judgment of the district court, but remanded Vvith instructions to dismiss the complaint fOT lack of
jurisdiction. ($18,661.61 as of April 30, 2005).
Johnson _ Writ of Mandamus challenging Director of Planning's determination ulat appiication for
"bOllildary determination" by alleged error requires zor>jng mnp amendment application. Applicant
applied for bou.'1.dary determination based on aHegation 4"11t BOCC previously adopted change in
zoning. Dire.ctor's determination was based on review of records failing to show any error or prior
consideration of such zoning change. Director rejected application and informed OVinerto properly file
for loning map amendment. (Boundary determination may be placed on BOCC agenda without the
pubtknotice required for a zoning change). PursuanT. to oralargumentt Monroe County agreed to re-
process application for denial or approval (application was previously returned as incomplete) and
Plaintiffs may appeal as provided by the Monroe County Code if denied. On May 26,2005, opposing
counsel submitted a proposed final judgment for the County's consideration. ($1,829.62 as of April 30,
2005).-
Sierra Club1 et at v, Department of Community Affairs & Miami-Dade County (l\'tonroe County
as Intervenor) . On October 10, 2002, the Miami-Dade County Board of County Commissioners
approved Ordinance No. 02-198, which amends the Land Use Element and Transportation Element of
Miami Dade's Comprehensive Vrow"tn Management Plan to change the designation of Krome Avenue
from a "Minor Roadway" (2 lanes) to a "Major Roadway" (3 or more lanes). On January to, 2003,
Petitioners filed a petition for formal administrative hearing to challenge DCA's :finding L1:at this and
other amendments to the Miami.Dade's Plan are "in compliance" as defined in section i 6331 84(1)(b),
Fla. Stat On December 16,2003, the AU granted Monroe County's petition to intervene. On March
22~ 2004, Miami-Dade tiled a motion to relinquish jurisdiction to DCA In December 2004, the parties
reached a tentative settlement agreement, but the Board of County Commissioners of Miami.Dade
County formally rejected the agreement on March 1,2005 On April 1 i, 2005, Cit)' of Homestead filed
its petition for leave to intervene (in support ofMiami~Dade); DOAR granted Ll)e petition on May 4,
2005. On May 11, 2005, Petitioners ftled their response to Miami.Dade's motion to relinquish
jurisdiction; the response was adopted by Monroe County. The case is set ror fmal hearing on
September 19 through 23 and 26 through 30, 2005. (Legal services are being provided by Morgan &
Hendrick V,11ho'Ul charge to Monroe C01J.'1ty).
Smart Planning llnd Growtb Coalition v. Monroe County (Circuit Court Case No, 03-CA-507-P)-
SPGC challenge ofNROGO allocations based on allegation that allocations violate NROGO/Comp
Pian provisions because Key Largo Ccrm11luniKeys Master Plan not yet adopted, Case was dismissed by
DOAH for tack of jurisdiction. Plaintiffs filed actIOn in circuit court on same grounds. County
prevailed on its motion to dismiss for lack of ju.-isdiction on grounds that plaintiff is not an "aggrieved
party," as required by section 1633215, Florida Statutes Plaintiffs filed an amended complaint on
February 20, 2004, County filed its answer on March 5, 2004 ($474A9 as of April 30,2(05).
5