Item G2
LAW OFFICES
HUGH J. MOReA'"
JAMES T. HENDRICK
KAREN K. CABANAS
JEDOE V, REGANTE
3 I 7 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
W. CURtly H.-HR'"
( 1 907 -, 998)
H.LARY U, AI..BURY
(I g~O "1990)
MORGAN & HENDRiCK
FAX TRANSMISSION
TO: JIM ROBERTS
MAYOR GEORGE NEUGENT
COMMISSIONER DIXIE SPEHAR
COMMISSIONER SONNY McCOY
COMMISSIONER NORA WILLIAMS
COMMISSIONER MURRAY NELSON
TIM MCGARRY
CLERK'S OFFICE, BELLE DESAI\'TIS
FAX #: 292-454~
872-919Y /
292-346~
292-357'1
(305) 289-630~
(305) 852-716r ../'
(305) 289-2536-"""
295-3615
FROM:
KAREN CABANAS, ESQ.
DATE:
JULY 16. 2001
SUBJECT:
GROWTH MANAGEMENT REpORT
TRANSMITTER: JON!
Total number of pages including this cover sheet: 4
ORIGINAL DOCUMENT(S):
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REGULAR
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OVE~'lGHT
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P.O. Box 1 I 17, Kt.yWEsr, FL 33041 $ TELE:PHONE ;;105 296-5676 $ f"ACSIMlll': .305 ZQ6-433'
3.a.
GROWm MANAGEMENT LITIGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry, Jim Roberts
FROM:
Karen K Cabanas
DATE:
July 18-19,2001
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, Following
hearing on cross-motions for summary judgment, the Magistrate Judge issued a report and
recoIT'.mendation to dismiss Plaintiffs' claims for failure to exhaust state court remedies and under
the abstention doctrine. Plaintiffs have filed their objections to the report a.l1d Monroe County has
flied its response to those objections, The judge will then review the Magistrate's report and the
objections and issue an order. ($40,007,25 as ofJune 30,2001).
Handte - Declaratory action challenging vacation rental regulations alleging that Petitioner relied
on existing zoning and that vacation rental use oftheir property should have been grandfathered
based on occupational licenses. Monroe County has filed a motion to disII'.iss because Florida law
holds that there is no right to rely on existing zorJng and occupational licenses do not confer any
property rights; they are merely a tax. ($624.00 as ofJune 30,2001).
Takinl!s Claims
New Port Largo - State "physical occupation" takings claim that had been remanded back to state
court when federal claims were dismissed, Case has been bifurcated to separately decide issues of
liability and damages. MOIlIOC County's motion for summary judgment based on statute of
limitations was denied ($12,845,50 as of June 30,2001).
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. PosHrial briefs and
proposed findings have been filed and we are now awaiting Judge Garcia' s ruling. If Monroe COUI4y
is found liable, the second phase of trial will be set to conduct a jury trial on damages - potentially
reaching $5 to 6 million. ($148,374.24 as ofJune 30,2001).
Tropic Leisure Recreation - Takings claims regarding property on Upper Matecumbe in which
Plaintiffs claim they were denied building pennits for new construction. Plaintiffs have fiJed suit
against lslamorada and Monroe County since permitti.l1g requests began prior to incorporation.
Monroe County has filed a motion for summary judgment on the grounds that the majority of
Plaintiff's claims occurred subsequent to incorporation and aU permitting liability and authority lies
with TsJamorada ($3,950.00 as ofJune 30,2001).
PhelpslIIardin - 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. (5859.00 as of June 30,2001).
Gtistinger - Case stems from code enforcement prosecution and order imposing lien. Mom-oe
County filed suit to collect monies due under lien. Property owner couiiter-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. Under 50% rule, said structure could not be permitted, as it previously
existed, The Special Master's findings were not appealed. Plaintiff's application for building permit
was denied and not appealed, ($448.50 as of June 30, 2001).
Pontin - Newly filed case alleging temporary and permanent taking of property due to allegedly
conflicting regulations of County and ACOE/DEP wherein each required the other's prior approval
before issuing pennits 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, ($1560.00 as ofJune 3D, 2001)
Moore - (old Marvin's restaurant) - Newly filed case 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 COUaity regarding the
application of said regulations through the administrative process. Under established law, only the
BOCC is authorized to issue a "final" decision for purposes of satisfying the ripeness doctrine - a
prerequisite for subject matter jurisdiction. Depositions of county staff are scheduled for July IT
($1560,00 as ofJune 30,2001).
Si1~ns & Billboards
Republic Media/Outdoor Systems - Declaratory action claim filed by billboard owners challenging
applicability of Post-Hurricane Emergency Permitting Policy and the billboard valuation schedule
pursuant to code regulations prohibiting repair of non-conforming billboards damaged beyond 500A; of
their value. Monroe County is seeking discovery requests regarding existing billboards and the work
than has been done without permits. Plaintiffs also seek various discovery requests. ($ i 3,774.00 as
ofJune 30,2001).
Stoky - Plaintiffs have filed two separate appeals of Planning Commission's decisions affirming the
denial of two after-the-fact building permits (1) for reconstruction of porch and deck structures and
(2) for re-construction of a non-confonning sign. Division of Administrative Hearings judge reversed
the Planning COIIllnission' s resolution as to the sign appeal. Oral argument on deck appeal is set for
July 24. ($5,600.00 as ofJune 30,2001),
Perry' 5 (Key Largo) - Declaratory action almost identical to complaint filed by Republic Media &
Outdoor Systems challenging Post-Hurricane Emergency Permitting Policy and it's application to
billboards, Temporary injunction has been automatically dissolved due to dismissal of the Republic
Media appeal. ($1345.00 as oOune 30, 2001).
2
Other Matters
Taxpayers for Electrifieation of NoN ame Key - Declaratory, vested rights, and 9 I 983 claims
challenging Monroe County's policy that installing commercial electric service to No Name Key is
prohibited by the 2010 comprehensive pla.ll. Proposed settlement agreement was denied by BOCC;
case will proceed in litigation. Property owners opposing electrification were granted leave to
intervene, ($7,747_50 as ofJune 30,2001)
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. Cross-motions for SUnL1llary judgment \vere heard on May 11, Proposed orders were
submitted; awaiting ruling by Judge Taylor. ($7,197.50 as ofJune 30,2001).
Galleon Bay - Petition fOT Certiorari review ofBOCC' s decision to deny vested rights application,
Monroe County filed its responsive pleading. No hearLng has been set; case has been transferred to
lower keys division ($2,480.00 as of June 30, 2001)(does not include prior Galleon Bay matters).
Ambrose - Declaratory action claiming vested rights under S;380.05(18) based on filing of
subdivision piats. 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 iot at issue
Vaiious environmental groups were also granted leave to intervene and will now have standing to file
briefs on appeal. ($39,369.75 as ofJune 30,2001),
3