Item L2
Hugh J. Morgan
James T.
Hendrick
Karen K.
Cabanas
Jedde V. Regante
LAW OFFICES
MORGAN & HENDRICK
317 Whitehead Street
Key West, Florida 33040
W. Curry Harris
(1907 -1 9B8)
Hilary U. Albury
(1920 -1999)
FAX TRANSMISSION
TO: JIM ROUERTS
MAYOR SONNY MCCOY
COMMISSIONER GEORGE NEUGENT
COMMISSIONER DIXIE SPEHAR
COMMISSIONER NORA WlLLlAMS
COMMISSIONER MURRAY NELSON
TIM MCGARRY
CLERK'S OFFICE, BELLE DESANTIS
FAX #: 292-454~
292-357~ '
872-919~' /
292-3466/ /
(305) 289-630~ /'.
(305) 852-71621' /'
(305) 289-2536'"
295-3663
FROM: KAREN CABANAS, ESQ.
DATE: JANUARY 13,2003
SUBJECT: GROWTH MANAGEMENT REpORT
TRANSl\1ITTER: JONl
Total number of pages including this cover sheet: 5
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P.O. Box 1117, KEY wesr, FL 33041 $ TELe~HONE 305296-5676 $ FACSIMILE 305296-4331
L ~
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Richard Collins; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
January 13, 2003
Vacation Rentals
N eumont (Federal Class Action) - Federal class action case alleging vacation rental ordinance was
prematurely enforced and is an unconstitutional taking of Plaintiffs' properties. Judge has dismissed
all but Counts 10 through 13 of Plaintiffs' complaint. Case has been scheduled for trial in June 2003.
Parties will conduct further discovery as to remaining counts relating to whether County followed
proper notice & adoption procedures, as required by state statute. Mediation is scheduled for January
28, 2003 and will be discussed at executive session on today's BOCC agenda. ($55,776.25 as of
December 31,2003).
Takin!:!:s Claims
New Port Largo - State "physical occupation" takings claim that had been remanded back to state
court when federal claims were dismissed. Cross-motions for Swnmary Judgment were heard June
6. The Court has vacated its prior order which had granted partial summary judgment in favor of
Monroe County, holding that any physical taking may only have occurred within a two-month
period. Awaiting Court's issuance of pre-trial order establishing discovery deadlines and setting trial
date. Executive session also scheduled for today. ($22,214.50 as of December 31, 2003).
Shadek - Takings claim for -570 acres of North Key Largo property based on the 1980's Major
Development Moratoriwn. Trial was held February 21,22 and March 13. Judge Garcia ruled in
favor of Plaintiffs on all takings cla.ims, declaring Monroe County liable for denying Plaintiffs all
economic use of their property for an eight-year period. Jury trial on damages is scheduled for
January, 27,2003. ($165,792.24 as of December 31,2003).
Tropic Leisure Recreation - Takings claims regarding property on Upper Matecrunbe in which
Plaintiffs claim they were denied building permits fOf new constmction. Plaintiffs have filed suit
against Islamorada and Monroe County since permitting requests began prior to incorporation.
Plaintiff filed an application for a bui lding penuit with Monroe County prior to Village incorporation
and eventually received a permit from Islamorada subsequent to incorporation. Monroe County's
motion for summary judgment was denied based on existence of disputed material facts. Trial is set
for February 23,2003. ($17,489.00 as of December 31,2003).
Galleon Bay - Petition for Certiorari review ofBOCC's decision to deny vested rights application.
Case has been re-assigned to lower keys division. Plaintiffs have also filed a separate action for
inverse condemnation. Judge Payne previously granted the County's motion to dismiss with
prejudice because Plaintiffs can pursue commercial fishing use of property. That order was vacated
on Plaintiffs' motion forre- hearing and Plaintiffs have filed their second amended complaint and the
County's motion to dismiss has been filed. Hearing has been postponed at Plaintiffs' request.
Judge Payne also entered final judgment in favor of Plaintiffs as to their vested rights appeal.
(Special Master had recommended granting application; BOCC rej ected recommendation and issued
Resolution denying vested rights. Plaintiffs appealed to circuit court aDd BOCC's resolution was
reversed). Monroe County further appealed by filing a Petition for Certiorari with Third District
Court of Appeals. Third District acceptedjuTIsdiction and Plaintiff has requested an extension to
fie their response in approximately 30 days. ($16,437.75 as of November 30, 2002) (does not include
prior Galleon Bay matters).
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 COlmty's
motion to dismiss based on Plaintiffs' failure to properly appeal code enforcement orders was
denied. Monroe County's answer has been filed. Parties are to complete discovery by March 3,
2003. ($1,589.00 as of December 31, 2003)_
Pontin - Case alleging temporary and pell11anent 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 oflimitations 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 motion to
dismiss was granted. Case has been remanded to state court. ($3,390_00 as of December 31, 2003).
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. ($5,325.00 as of December 31, 2003).
Other Matters
Taxpayers :for Electrification of No Name 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 BOCC;
case will proceed in litigation- Property owners opposing electrification were granted leave to
intervene. Court granted Monroe County's motion for summary judgment. Plaintiffs have filed a
Notice of Appeal to the Third District and have moved for an extension oftime to file their initial
brief. ($14,404.50 as of December 31, 2003)-
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Cla.y (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 Connty may violate state concurrency and Endangered Species Act provisions. Plaintiffs
have appealed to 3rt] District Court of Appeals- Oral argument was held June 13. Parties are
awaiting ruling from 3rd DCA as to whether case has been rendered moot by recent BOCC-approval
of beneficial use determinations allowing issuance ofpermits. One permit has been issued and was
appealed by Department of Community Affairs. All property owners have been notified of DCA 's
action and informed that they may pull their permits or await resolution between County & DCA.
($16,176.50 as of December 31, 2003)-
Ambrose - Declaratory action claiming vested rights under 9380.05(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. Final Order has been entered by Court and all Defendants
have filed notices of appeal. All briefs have been submitted and oral argument is scheduled for
February 5,2003. ($53,416.25 as of December 31,2003).
Upper Keys Citizens Association - Two separate cases: (1) Appeal to Div. of Admin. Hearings of
Planning Commission's approval of North Key Largo sub-station for Fla. Keys Electric Co-Op.
County's brief has been submitted. Oral argument before Third DCA was held Jnne 18 on
Petitioner's appeal of the circuit court dismissal of certiorari action. Third DCA has entered its order
affirming the trial court's dismissal of the certiorari action. All briefs have been filed in DOAH
appeal and oral argument has been scheduled. ($10,275.00 as of December 31,2003).
Lawson - Appeal of Monroe County Planning Commission resolution- No Initial Briefhas been
filed and Appellant has requested extension oftime to file. ($90.00 as of December 31, 2003).
Johnson - New matter seeking Writ of Mandamus challenging Director of Planning's deterol1nation
that application for "boundary determination" by alleged error requires zoning map amendment
application. Applicant applied for boundary determination based on allegation that BOCC
previously adopting change in zoning. Director'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 Owner to properly file for zoning map amendment. (Boundary determination may be
placed on BOCC agenda without the public notice required for a zoning change). Hearing on
mandamus has been postponed due to judicial recusal & reassignment. ($425.00 as of December 31,
2003).
Emmert - Complaint seeking inverse condemnation based on partial granting of Beneficial Use
application. Plaintiffs were granted partial beneficial use from wetland regulations, thus expanding
the buildable area of their vacant Ocean Reef lot from approximately 1,800 to 2,500 square feet.
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However, Plaintiffs cannot build within this area due to Ocean Reef Association deed restrictions
requiring setbacks in excess of those required by Monroe COl.Ulty. Plaintiffs allege that Monroe
County's actions have resulted in a denial of all economic use of their property, despite ex.pressly
allowing a 2,500 square foot buildable area. Monroe CountYs motion to dismiss was denied on
grounds that court has original jurisdiction over constitutional claims & cannot be bound by Hearing
Officer's fmdings. Parties are to schedule early mediation, as there are a number of similarly-situated
Ocean Reeflots. DCA has requested to participate in settlement discussions and will be included.
($775.00 as of December 31, 2003).
Stoky - Certiorari appeal of County's denial of permit to reconstruct certain square footage due to
various nonconfoIDlities with existing LDRs. Previous appeal was taken to BOCC for final ruling &
BOCC affIrmed staffs findings & interpretation. Case was initially:fiJed over 1 year ago & plaintiffs
have now filed an amended complain. Monroe COWlty'S motion to dismiss and response to certiorari
has been filed. Awaiting ruling or scheduling of oral argument ($360.00 as of December 31,2003).
New Matters
Department of Community Affairs v. Monroe County - Newly-filed case before Land and Water
Adjudicatory Commission alleging that County has failed to comply with various Comp Plan
requirements by failing to routinely amend endangered species maps, and vegetation surveys as to
high & moderate quality hannnock areas. Also alleges that County has allowed higher ROGO scores
that should have been allocated due to failure to amend maps, thereby allowing more residential
development than should have been approved.
Department of Community Affairs v. G. Contreras; DCA v. D. Contreras - Two newly-filed
petitions by DCA before FLAW AC challenging residential building permits issued on Key Largo for
on same grounds as above case.
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